ARGENTINA BECOMES FIRST LATIN-AMERICAN NATION TO LEGISLATE ...

ARGENTINA BECOMES FIRST LATIN-AMERICAN NATION TO LEGISLATE IN FAVOR OF

MARRIAGE FOR SAME-SEX PARTNERS AFTER ICELAND TAKES THE PLUNGE

Summer 2010

In the early morning hours of July 15, Argenti- man Catholic Church, staged large demonstra- U.S. states of Massachusetts, Iowa, Connecti-
na’s Senate concluded a 16 hour debate by vot- tions condemning the proposal, but ultimately cut, Vermont, and New Hampshire, and the
ing 33-27 (with 3 abstentions) in favor of legis- did not deter a majority of legislators from tak- District of Columbia, afford same-sex couples
lation that will provide full access to marriage ing the position that this was an issue of civil the right to marry, although those marriages are
for same-sex couples in that country. The Sen- policy that should be resolved in favor of equal not recognized by the federal government for
ate vote endorsed a bill that was approved by rights. purposes of more than 1,000 instances of fed-
the lower house of the legislature on May 5, eral law in which marital status is relevant.
2010, by a vote of 125-109, with 6 abstentions. Argentina will not become a tourist marriage Many other countries, especially in Europe,
President Cristina Fernandez de Kirchner is a destination for same-sex couples from other provide a legal status other than marriage for
strong supporter of the legislation, so final en- countries, because it does not provide marriage same-sex couples. A.S.L.
actment is assured. The legislation will substi- licenses for non-residents, and establishing SUPREME COURT UPHOLDS LAW SCHOOL’S
tute the term “the marrying parties” for “hus- residency is reportedly a time-consuming pro- REFUSAL TO RECOGNIZE CHRISTIAN LEGAL
band and wife” in the existing laws governing cess, so only those non-residents who are con- SOCIETY UNDER DISCRIMINATION POLICY
marriage. It becomes effective upon publica- templating moving there permanently are likely In a hotly-argued 5-4 ruling, the United States
tion in the official bulletin, which was expected to undertake this route to marriage. On the Supreme Court has rejected the Christian Legal
to take place within a few days of the vote. Fur- other hand, approving same-sex marriage is Society’s First Amendment challenge to a deci-
ther legislation will be needed to make neces- seen as bolstering Argentina’s reputation as a sion by the Hastings College of Law of the Uni-
sary adjustments in other statutes. The Argen- gay-friendly travel destination, which may pay versity of California to deny “registered student
tinian action came just a month after Iceland’s substantial commercial benefits. organization” status to a CLS chapter at the law
Parliament had voted unanimously, 49-0, on school. Christian Legal Society v. Martinez, No.
June 12 to approve legislation allowing same- Prior to the legislative vote in Iceland, 08-1371, 561 U.S. ___, 2010 WL 2555187
sex marriages, with the law coming into force on same-sex couples there were allowed to form (June 28, 2010). Justice Ruth Bader Ginsburg
June 27. civil partnerships that carried the same rights wrote the opinion for the Court, which was
as marriage, but such partnerships had not at- joined by Justices John Paul Stevens, Anthony
Although Argentina becomes the first coun- tained the social status akin to marriage. The M. Kennedy, Stephen Breyer, and Sonya Soto-
try in Latin America to provide marriage for election of openly-lesbian Prime Minister Jo- mayor. Justices Stevens and Kennedy also
same-sex partners, it is not the first to address hanna Sigurdardottir made the situation intol- wrote separate concurring opinions. Justice
the issue of providing a legal status for same- erable, and pointed to the absurdity of making a Samuel Alito wrote a dissent, joined by Chief
sex partners, as Uruguay and Colombia provide continuing distinction without a legal differ- Justice John Roberts and Justices Antonin
civil unions that afford some of the rights of ence. As soon as the new law went into effect, Scalia and Clarence Thomas.
marriage, and same-sex couples have some le- the prime minister married her long-time part-
gal rights in Ecuador. Mexico City makes mar- ner, Jonina Leosdottir, with whom she had en- National Center for Lesbian Rights and Jen-
riages available to same-sex partners, and tered into a civil union in 2002. Iceland is gen- ner & Block were co-counsel for the LGBT stu-
some local jurisdictions in Latin-American erally counted a part of Europe, and is a dent group at Hastings, Outlaws, who inter-
countries have extended limited rights to member of the Council of Europe, governed by vened in the case as co-defendants.
same-sex couples. the European Convention on Human Rights. As
indicated by the unanimous vote, this turned The sharp arguments between the justices
The issue was forced in Argentina as several out not to be a controversial decision in a small, over their alternative conceptions of the case
same-sex couples were able to find local offi- pervasively secular culture, with roots in Scan- surfaced in some pointed language by Gins-
cials willing to perform marriage ceremonies, dinavia where several countries now have burg, who accused Alito of “indulging in
generating litigation that was widely antici- same-sex marriage. Iceland’s “parent” country, make-believe” and at one point describes the
pated to result in a Supreme Court ruling that Denmark, was the first in the world to provide dissent’s analysis as “warped.” Alito, in turn,
might have compelled the government to take registered partnerships for same-sex couples. describes the majority opinion as “misleading”
this step. By legislating rather than waiting to and states his hope that it will turn out to be an
see what the court would do, political leaders When Argentina’s legislation goes into ef- “aberration.” What the majority views as a
were responding to widespread popular senti- fect, it will be the tenth nation to provide full straightforward application of its “limited pub-
ment in favor of same-sex marriage, with some marriage rights for same-sex couples, joining lic forum” First Amendment jurisprudence, the
media reporting 70% positive polling on the is- (in chronological order) the Netherlands, Bel- dissent sees as an important battle in the cul-
sue. Opposing groups, encouraged by the Ro- gium, Spain, Canada, South Africa, Norway, ture wars and an unfortunate victory for “politi-
Sweden, Portugal and Iceland. In addition, the cally correct views” on university campuses.

LESBIAN/GAY LAW NOTES Summer 2010 In 2004, a small group of Hastings Law Stu-
dents petitioned the school to recognize their
Editor: Prof. Arthur S. Leonard, New York Law School, 57 Worth St., NYC 10013, 212–431–2156, fax 431–1804; e-mail: [email protected] or proposed chapter of the Christian Legal Society
as a registered student organization. They sub-
[email protected] mitted a copy of the by-laws, which incorpo-
rated the national Christian Legal Society’s re-
Contributing Writers: Chris Benecke, Esq., NYC; David Buchanan, SC, Australia; Bryan Johnson, Esq. NYC; Daniel Redman, Esq., San Francisco; Robert quirement that members subscribe to a

Wintemute, Faculty of Law, King’s College, London; Stephen E. Woods, J.D., NYC; Eric Wursthorn, Esq., NYC; Kelly Garner, NYLS ‘12.

Circulation: Administrator, LEGAL, 799 Broadway, Rm. 340, NYC 10003. 212–353–9118; e-mail: [email protected]. Inquire for rates.

LeGaL Homepage: http://www.le-gal.org

Law Notes on Internet: http://www.nyls.edu/jac

©2010 by the LeGaL Foundation of the LGBT Law Association of Greater New York ISSN 8755–9021

96 Summer 2010 Lesbian/Gay Law Notes

Christian statement of faith and abstain from vant recent rulings on similar cases from other dent organizations, and that student organiza-
any sexual activity outside of heterosexual mar- schools, and affirmed in an unpublished one- tions not undertake activities that conflict with
riage. This later requirement was expressed, in paragraph opinion, citing the other cases and the mission of the school.
part, as a rejection of anybody who engages in characterizing Hasting’s policy as reasonable
“unrepentant homosexual conduct.” In effect, and content-neutral. Justice Ginsburg noted the distinction be-
students who were not willing to swear to a par- tween this case and Boy Scouts v. Dale, in which
ticular version of orthodox Christian belief or At an early point in the litigation, CLS and the Court ruled (by a 5-4 vote) that the state of
who identified as gay would be excluded from Hastings stipulated that Hastings requires reg- New Jersey could not compel Boy Scout chap-
membership in the chapter. istered student organizations to “allow any stu- ters in the state to admit gay people as mem-
dent to participate, become a member, or seek bers. Ginsburg pointed out that the CLS chap-
The Hastings administration refused to des- leadership positions in the organization, re- ter at Hastings was free to exclude gays from
ignate CLS as a registered student organization, gardless of status or beliefs.” This policy, which membership, but it was not entitled to do so as a
citing the school’s non-discrimination policy, the Court characterized as the “all comers” registered student organization eligible to use
which includes a prohibition on discrimination policy, proved a major point of contention be- tax-payer funded facilities and receive funds
based on religion or sexual orientation. The ad- tween the majority and the dissenters, with drawn from activity fees paid by all students,
ministration informed the CLS students that Alito arguing that it is actually a “some comers” including those who would be excluded from
only student organizations that made member- policy because student organizations are al- membership. The Boy Scouts, by contrast, is a
ship available without discriminating based on lowed to impose membership requirements, so private organization which the Court has ruled
religion or sexual orientation could be officially long as they don’t involve the characteristics is free to exclude people whose inclusion
registered. Registration is a prerequisite to listed in the non-discrimination policy. Thus, would, in the Scouts’ judgment, undermine
various benefits, such as use of campus facili- Alito argues, student organizations are allowed their expressive message. (In dissenting opin-
ties and participation in various activities, such to discriminate on some grounds and not others, ions in Dale, members of the Court pointed out
as participation in the annual student organiza- destroying the “neutrality” of the policy and the intellectual incoherence of this position.
tional fair, and eligibility for student organiza- falling afoul of the Court’s First Amendment ju- What if the Scouts felt that their message would
tion funds. The administration informed CLS risprudence. Indeed, Alito argued, the non- be subverted by being required to include peo-
that they would be allowed to meet on campus, discrimination policy is itself discriminatory ple of color in their membership? Would they
but would have to use general communications against religious groups since it requires them then enjoy a First Amendment right to discrimi-
media and would not be eligible for student ac- to admit into its ranks those who disagree with nate based on race? Thus, the majority of that
tivity funds (which are drawn largely from ac- their religious doctrine and messages as a con- Court in Dale was signaling its view that anti-
tivity fees paid by students). dition of participating equally in campus life. gay discrimination is less problematical than
race discrimination.)
When CLS representatives pointed out that Justice Ginsburg rejected this characteriza-
there were other registered student organiza- tion of the case, arguing that CLS was seeking to In the CLS case, the Court found that the bal-
tions whose by-laws required students to share be exempted from the school’s policy – which ance between the free speech and free exercise
certain beliefs (such as the Hastings Demo- echoes California state law – banning discrimi- rights of the CLS members and the law school’s
cratic Caucus and the La Raza Student Asso- nation based on religion or sexual orientation. interest in having a non-discriminatory limited
ciation), the administration contacted those or- This is reminiscent of the argument about “spe- public forum among its registered student or-
ganizations and told them they would have to cial rights” versus “equal rights” that conser- ganizations was appropriately served by allow-
revise their by-laws to eliminate such require- vatives raise in opposition to gay rights laws, ing the school to withhold registered status
ments. No other organization was disqualified, claiming that gay people are seeking special while allowing CLS to exist at Hastings without
and, according to Alito’s dissent, CLS is the rights to government support, while gay propo- the imprimatur of official recognition or receipt
only student organization in the history of Hast- nents argue that they are merely seeking equal of official benefits. The Court emphasized that
ings Law School to have been denied registered treatment with non-gay people by the govern- Hastings did not prohibit CLS from meeting on
student organization status. Alito also high- ment. “CLS, it bears emphasis, seeks not parity campus, but denied them the privileges made
lights record evidence showing that CLS’s at- with other organizations, but a preferential ex- available to registered organizations in using
tempts to use campus facilities have been emption from Hastings’ policy,” she wrote. designated communications media and having
thwarted at times by tardy responses from law “The First Amendment shields CLS against priority on use of law school space for activities.
school administrators. state prohibition of the organization’s expres- The Court found that the school’s policy of re-
sive activity, however exclusionary that activity quiring that registered organizations be open to
CLS sued to compel their recognition, argu- may be. But CLS enjoys no constitutional right “all students” was reasonable and content-
ing that the school’s application of the non- to state subvention of its selectivity.” neutral.
discrimination policy in this instance
amounted to discrimination against CLS on the Under the Court’s “limited public forum” ju- The dissenters, on the other hand, found the
basis of religion. As the argument goes, by im- risprudence, a public university is deemed to policy to be discriminatory because it condi-
posing a requirement upon a religious organi- be different from such traditional public forums tioned full participation in the law school com-
zation that it open its membership to non- as streets and town squares. In a traditional munity on requiring the CLS members to ac-
believers or those who defy the organization’s public forum, the government can seek to pre- cept unwanted members. One of CLS’s
religiously-based sexual conduct code, the law serve order and prevent violence but basically arguments was that requiring it to accept non-
school was violating the free exercise clause of must tolerate all kinds of speech, including of- Christians and gays could open the organiza-
the First Amendment, and discriminating fensive and hateful speech. A limited public fo- tion to being subverted by a covert campaign of
against CLS. rum is different. A government agency, such as non-believers and gay people joining and then
a state-funded law school, may place certain installing themselves as officers. The majority
The federal district court rejected CLS’s ar- limits on access to its property consistent with dismissed this as purely hypothetical, pointing
gument, finding that the law school’s non- the mission of the institution. It is by now un- out the unlikelihood that this would occur or
discrimination policy in its application to this controversial, for example, that public schools could succeed, but the dissent treated it as a
case was content-neutral. When CLS appealed can require that only students in the institution real concern.
the district court’s ruling to the 9th Circuit, that are allowed to be members of recognized stu-
court saw the case as being governed by its rele-

Lesbian/Gay Law Notes Summer 2010 97

One of the arguments CLS tried to make in other factors. This approach may or may not be corporate accounting was unconstitutional, and
defending its exclusionary policy was that it the wisest choice in the context of a Registered that patent law could be used to protect busi-
was not engaged in status discrimination on the Student Organization (RSO) program. But it is ness methods, although the particular method
basis of sexual orientation, because its policy at least a reasonable choice. Academic admin- at issue in the case did not qualify for such pro-
disqualified people based on their conduct as istrators routinely employ antidiscrimination tection.)
“unrepentant homosexuals,” not merely their rules to promote tolerance, understanding, and
sexual orientation status. Justice Ginsburg re- respect, and to safeguard students from invidi- Alito’s lengthy dissent, longer than Gins-
jected this argument, citing to Lawrence v. ous forms of discrimination, including sexual burg’s opinion for the Court, sharply disputed
Texas, where Justice Sandra Day O’Connor had orientation discrimination. Applied to the RSO the Court’s view of the facts and the issues at
rejected an identical argument in her concur- context, these values can, in turn, advance nu- stake, seeing the case as a major challenge to
ring opinion on equal protection grounds. In merous pedagogical objectives.” In a footnote the full participation in campus life by Chris-
that case, Texas argued that the sodomy law did aside, linked to his reference to sexual orienta- tian students. He argued, in effect, that campus
not discriminate against gay people as a class tion discrimination, Stevens commented, “Al- policies banning religious and sexual orienta-
because it also prohibited non-gay people from though the dissent is willing to see pernicious tion discrimination are an unconstitutional at-
having gay sex. Said Ginsburg: “Our decisions antireligious motives and implications where tempt by public universities to impose liberal
have declined to distinguish between status there are none, it does not seem troubled by the political correctness on dissenting religious
and conduct in this context.” As Justice Ken- fact that religious sects, unfortunately, are not students. “I do not think it is an exaggeration to
nedy signed the majority opinion in CLS, this the only social groups who have been perse- say that today’s decision is a serious setback for
passage in the opinion may support the argu- cuted throughout history simply for being who freedom of expression in this country,” he
ment that a majority of the Court considers gay they are.” wrote. “Even those who find CLS’s views objec-
people a “protected class” under the 14th and tionable should be concerned about the way the
5th Amendment equal protection require- Stevens also noted that the dissent seemed to group has been treated – by Hastings, the Court
ments, which could have important implica- have lost sight of the Court’s traditional distinc- of Appeals, and now this Court. I can only hope
tions in other pending litigation, including con- tion between intentional discrimination and the that this decision will turn out to be an aberra-
situtional challenges to DOMA, DADT, and discriminatory side-effects of neutral policies. tion.”
Proposition 8 in California. The day after the While it was true that Hastings’ content neutral
decision was announced, counsel for plaintiffs ban on religious and sexual orientation dis- That four members of the Court signed Ali-
in Perry v. Schwarzenegger sent a letter to U.S. crimination might incidentally burden CLS, to’s dissenting opinion shows the narrow thread
District Judge Vaughan Walker (N.D.Cal.), this was not a burden that would be recognized by which the Supreme Court supports gay dis-
making this argument and further refuting an as violating First Amendment norms, relating crimination claims in the face of religious oppo-
argument that proponents of Proposition 8 had back to the Court’s controversial Employment sition, helping to explain why LGBT political
made in defending it at trial. Division v. Smith case, in which it held that and legal groups submitted searching ques-
neutral laws of general application could be ap- tions to the Senate Judiciary Committee to be
Stevens wrote separately to take on Alito’s ar- plied to religious organizations, even though posed to Supreme Court nominee Elena Kagan,
gument that the law school’s non- they imposed an incidental burden on free ex- whose confirmation hearings coincidentally
discrimination policy was itself discriminatory, ercise. Interestingly, this approach, adopted in began shortly after the Court closed its final
a point that Justice Ginsburg did not feel was a case involving Native American religious use public session of the Term. A.S.L.
necessary to take on in any detail in the major- of peyote, was the brainchild of conservative
ity opinion. “As written,” wrote Stevens, “the members of the Court, some of whom joined LESBIAN/GAY
Nondiscrimination Policy is content and view- Alito’s dissent. LEGAL NEWS
point neutral. It does not reflect a judgment by
school officials about the substance of any stu- Justice Kennedy’s concurrence expanded on Federal Court Finds That Section 3 of the
dent group’s speech. Nor does it exclude any various points from the majority opinion with- Defense of Marriage Act Violates the
would-be groups on the basis of their convic- out presenting any separate reasoning, which Constitution
tions. Indeed, it does not regulate expression or he acknowledged in his closing sentence, stat-
belief at all.” In a footnote, he rejected the dis- ing: “These observations are offered to support In a pair of rulings announced on July 8, U.S.
sent’s argument that “a rule excluding those the analysis set forth in the opinion of the Court, District Judge Joseph L. Tauro found that Sec-
who engage in ‘unrepentant homosexual con- which I join.” Most of Kennedy’s opinion am- tion 3 of the Defense of Marriage Act (DOMA),
duct’ does not discriminate on the basis of plified his view about the range of discretion af- enacted in 1996 in reaction to same-sex mar-
status or identity,” commenting, “Our First forded to educational administrators in their riage litigation in Hawaii, violates the Equal
Amendment doctrine has never required uni- decisions about how to encourage a campus Protection requirement of the 5th Amendment,
versity administrators to undertake the impos- where alternative points of view are respected the Commonwealth of Massachusetts’ reserved
sible task of separating out belief-based from and thus contribute to the educational process. rights under the 10th Amendment, and im-
status-based religious discrimination.” poses an unconstitutional condition on state
Perhaps Kennedy felt a need to write sepa- eligibility for funding under various federal
Stevens drew a telling parallel between the rately because he was clearly the swing vote programs, so is not justified or supported by the
oppression that has sometimes been suffered that made the majority opinion possible. All Spending Clause, Article I, Section 8. Gill v. Of-
by religious minorities and by sexual minorities four of the major decisions released on June 28, fice of Personnel Management, 2010 WL
as he took on Alito’s argument that the Hastings the final date of the Court’s 2009-2010 term, 2695652 (D. Mass., July 8, 2010); Common-
policy was not really content-neutral because it were 5-4 rulings with Kennedy in the majority, wealth of Massachusetts v. U.S. Department of
banned some forms of discrimination and not but this is the only one where he was abandon- Health and Human Services, 2010 WL
others. Stevens wrote, “What the policy does ing his fellow conservatives to help the moder- 2695668 (D. Mass., July 8, 2010).
reflect is a judgment that discrimination by ates make up their majority. (In the other cases,
school officials or organizations on the basis of Kennedy joined in finding that state and local Judge Tauro, who was appointed to the fed-
certain factors, such as race and religion, is less gun laws are subject to attack under the 2nd eral district court in 1972 by President Richard
tolerable than discrimination on the basis of Amendment, that a key provision of the Nixon, was ruling on the government’s motion
Sarbanes-Oxley law regulating the practice of

98 Summer 2010 Lesbian/Gay Law Notes

to dismiss and plaintiffs’ motions for summary authority to enact an exception to the Full Faith The idea that DOMA was needed to nurture
judgement in cases brought by Gay & Lesbian and Credit Clause of the Constitution. Lan- heterosexual marriage was also rejected, as
Advocates & Defenders (GLAD) on behalf of a guage from the legislative history, quoted by “this court notes that DOMA cannot possibly
group of same-sex couples who are married in Judge Tauro, suggests that the discussion was encourage Plaintiffs to marry members of the
Massachusetts, where such marriages became conducted mainly at the level of sloganeering opposite sex because Plaintiffs are already
available beginning in May 2004, and by the rather than careful policy-making. married to members of the same sex.” The
Attorney General of Massachusetts, Martha judge also found that “denying marriage-based
Coakley, on behalf of the Commonwealth of It was not until after the bill’s passage that benefits to same-sex spouses certainly bears no
Massachusetts, which has been hobbled in its the General Accounting Office issued a report reasonable relation to any interest the govern-
ability to provide full marriage rights to its resi- finding that at least 1,049 federal laws were po- ment might have in making heterosexual mar-
dents because of the restrictions on federal tentially implicated. (A later study, released in riages more secure.” Defending traditional no-
money imposed pursuant to Section 3 of 2004, found the number had by then increased tions of morality can no longer be offered as a
DOMA. to 1,138.) Thus, when Congress was consider- legitimate justification for official discrimina-
ing the bill, it was acting in ignorance of its ac- tion after Lawrence v. Texas, and while preserv-
Section 3 of DOMA provides that only a mar- tual scope, and without considering whether ing scarce resources is a “legitimate govern-
riage involving one man and one woman will be denial of recognition to same-sex marriages ment interest,” Tauro was unwilling to credit it
recognized for any purposes of federal law, and was justifiable with respect to any particular as a basis for upholding Section 3. “This court
that when the word “spouse” is used in federal federal right, benefit or obligation. Since then, can discern no principled reason to cut govern-
law, it only refers to a party in a different-sex every time Congress has enacted a new law ment expenditures at the particular expense of
marriage. where a person’s marital status is relevant to Plaintiffs, apart from Congress’ desire to ex-
some right, benefit or obligation, the impact of press its disapprobation of same-sex mar-
GLAD’s complaint detailed ways in which DOMA is increased, but Congress has made no riage,” and Congressional dislike of a particu-
the plaintiff couples had been denied various effort to provide an independent justification lar group is not a reasoned justification for
rights and benefits because of DOMA, and the for continuing to discriminate against same-sex legislation.
state’s complaint spelled out the constraints marriages in newer legislation.
that had been imposed upon it as a result of the Instead of the “interests” identified by Con-
federal prohibition. In both cases, the plaintiffs The House Report accompanying the 1996 gress in 1996, the Justice Department, forced
sought a judicial ruling that Section 3 was un- bill identified four “interests” that Congress to come up with some new justification, devised
constitutional as applied to them in Massachu- claimed to be advancing through its enactment: the bizarre claim that DOMA was an attempt by
setts, so the court’s decision has no immediate encouraging responsible procreation and Congress, as summarized in Judge Tauro’s
application outside the state, but could take on child-bearing, defending and nurturing the in- opinion, to preserve the status quo “pending
greater significance if appealed to and upheld stitution of traditional heterosexual marriage, the resolution of a socially contentious debate
by the U.S. Court of Appeals for the 1st Circuit, defending traditional notions of morality, and taking place in the states over whether to sanc-
which has jurisdiction over the neighboring preserving scarce resources. Judge Tauro noted tion same-sex marriage.” The government ar-
New England states of New Hampshire, Maine, that the Justice Department does not rely on gued that DOMA was necessary “to ensure
and Rhode Island, as well as Puerto Rico, and these four “interests” in defending the statute consistency in the distribution of federal
the cases could of course take on even greater today, and has actually disavowed them, in- marriage-based benefits,” and to avoid the dis-
significance if the Supreme Court ultimately stead making new arguments devised in light of order and disruption of having to deal with dif-
rules on the questions it presents. their realization that the original four “inter- ferent definitions of marriage in different states.
ests” are either invalid or constitutionally un-
In 1993, the Hawaii Supreme Court ruled acceptable. Judge Tauro found this argument to be re-
that the state’s denial of marriage to same-sex futed by history. Marriage requirements have
couples might violate the state constitution’s Judge Tauro quickly disposed of them as always differed among the various states, but
Equal Rights Amendment as a form of sex dis- well. After noting studies showing that children the federal government has, until the passage of
crimination. In the months leading up to the raised by gay parents “are just as likely to be DOMA, never sought to impose uniformity or
subsequent trial in Hawaii, same-sex marriage well-adjusted as those raised by heterosexual refused to provide federal recognition to a mar-
became a national issue in the midst of con- parents,” he commented, “But even if Congress riage that was lawfully contracted in a state. He
gressional and presidential elections. Senator believed at the time of DOMA’s passage that particularly noted the history of interracial
Bob Dole, Republican Majority Leader and children had the best chance at success if marriage, which was outlawed at various times
eventually unsuccessful presidential candi- raised jointly by their biological mothers and in more than forty states, although that number
date, introduced the Defense of Marriage Act, fathers, a desire to encourage heterosexual cou- had declined significantly by the time the Su-
which was promptly embraced by politicians of ples to procreate and rear their own children preme Court invalidated miscegenation laws in
both parties, including President Bill Clinton. more responsibly would not provide a rational 1967 in Loving v. Virginia. During the entire
Both houses of Congress approved DOMA by basis for denying federal recognition to same- period, the federal government respected
overwhelming margins and President Clinton sex marriages. Such denial does nothing to pro- mixed-race marriages at a time when only a
signed it into law shortly before the election. mote stability in heterosexual parenting,” and, small minority of states allowed them, a situa-
he pointed out, deprives the children of same- tion analogous to the present when only a hand-
Although there were Congressional hearings sex couples “from enjoying the immeasurable ful of states allow same-sex marriages.
prior to passage of the bill, Congress made no advantages that flow from the assurance of a
attempt then to determine all the provisions of stable family structure,” quoting from the Mas- The bottom line for Tauro was that under our
federal law that would be affected by an sachusetts Supreme Court’s same-sex marriage Constitutional scheme marriage and family law
across-the-board ban on federal recognition of ruling. He also quoted Supreme Court Justice has always been the prerogative of the states,
same-sex marriages. Most of the legislative his- Antonin Scalia’s famous comment that “the within the minimal constraints imposed by the
tory is concerned with Section 2, the provision sterile and the elderly” have never been denied Constitution. Article I, which enumerates the
purporting to relieve states of any obligation to the right to marry, so clearly the ability to pro- powers of Congress, does not mention marriage,
accord “full faith and credit” to same-sex mar- create has not been deemed a prerequisite for and history shows that proposals to federalize
riages contracted in other states, with argu- marriage in the United States. marriage law have been consistently rejected
ments focusing on whether Congress had the

Lesbian/Gay Law Notes Summer 2010 99

by Congress. This includes, of course, Con- motivates the challenged classification. As ir- gan (Republican), George H.W. Bush (Repub-
gress’s repeated failure to approve and send to rational prejudice plainly never constitutes a le- lican), George W. Bush (Republican), and
the states for ratification the proposed Federal gitimate government interest, this court must Barack Obama (Democrat). Thus, the active
Marriage Amendment that has been repeatedly hold that Section 3 of DOMA as applied to circuit judges are evenly divided among Demo-
introduced by same-sex marriage foes. Promi- Plaintiffs violates the equal protection princi- cratic and Republican appointees. The three
nent Republican opponents of same-sex mar- ples embodied in the Fifth Amendment to the senior judges were all appointed by Republican
riage, such as Senator John McCain, opposed United States Constitution.” Presidents: Richard Nixon, Ronald Reagan,
the amendment on the ground that regulating and George H.W. Bush. The 1st Circuit Court of
marriage was up to the states and they did not Concluding in the state’s case, he wrote, Appeals does not have an extensive history of
want to intrude on states’ rights by dictating “That the government views same-sex mar- rulings on LGBT rights issues. When the court
marriage policy. In applying federal law, the riage as a contentious social issue cannot justify sits en banc, only active judges participate.
government has consistently, until 2004 when its intrusion on the ‘core of sovereignty retained A.S.L.
same-sex marriages first became available in by the States,’ because ‘the Constitution . . .di-
one state, recognized lawful state-law mar- vides power among sovereigns and among U.S. Supreme Court Rules Petition Signatories Can
riages, even when some other states would not branches of government precisely so that we Usually Be Disclosed
recognize those marriages. may resist the temptation to concentrate power
in one location as an expedient solution to the The U.S. Supreme Court upheld the constitu-
This led the judge to his bottom line in both crisis of the day.’ This court has determined that tionality of a Washington state law authorizing
cases. In the case brought by GLAD, he found it is clearly within the authority of the Common- public disclosure of the petitions that are sub-
that it was not necessary to determine whether a wealth to recognize same-sex marriages among mitted to the state to put referenda on the ballot,
fundamental right or a suspect classification its residents, and to afford those individuals in but was sharply divided over the circumstances
was involved, because any federal law that dis- same-sex marriages any benefits, rights, and under which petition signers might be constitu-
criminates among similarly situated groups privileges to which they are entitled by virtue of tionally entitled to an exception from the disclo-
must be supported by a rational, non- their marital status. The federal government, by sure requirement. The Court ruled 8-1 in Doe v.
discriminatory justification, and he could find enacting and enforcing DOMA, plainly en- Reed, No. 09-559, 2010 WL 2518466 (June
no rational justification for the federal govern- croaches upon the firmly entrenched province 24), that the federal district court in Washing-
ment to single out same-sex marriages for of the state, and, in doing so, offends the Tenth ton State erred in striking down the statute as
across-the-board exclusion from recognition Amendment. For that reason, the statute is unconstitutional, but only six judges signed the
for any purpose of federal law, including many invalid.” opinion for the Court by Chief Justice John
instances that did not involve expenditures of Roberts. The Court sent the case back to the
federal funds under benefit programs. (For ex- Since Judge Tauro issued his orders denying trial court to give the plaintiffs an opportunity to
ample, testimonial privileges in federal court the federal government’s motion to dismiss seek an exception to the disclosure require-
cases, or spousal rights to benefit from copy- both cases and granting the plaintiffs’ motions ment.
rights and patents held by a deceased spouse.) for summary judgment in both cases simultane-
ously with the release of his opinions, the gov- Justice Clarence Thomas dissented, arguing
In the case brought by the state government, ernment’s sixty days to appeal began running that the statute placed an unconstitutional bur-
he found that Congress had clearly overstepped on July 8. den on the free speech rights of petition signers.
and invaded the right reserved to the state un- There were concurring opinions by Justices So-
der the 10th Amendment to decide who can Unless Congress moots both cases by pass- nya Sotomayor, John Paul Stevens, Antonin
marry in the state, and that Congress’s power ing pending legislation that would repeal Scalia, Stephen Breyer, and Samuel Alito, with
under the Spending Clause could not justify DOMA, the court’s ruling would go into effect Justice Breyer also signing Justice Stevens’
DOMA, because it imposed an unconstitutional in Massachusetts unless an appeal is taken by concurrence, and Justice Ruth Bader Ginsburg
condition on Massachusetts, requiring it to dis- early September, although the Justice Depart- signing Justice Sotomayor’s concurrence, to-
criminate against married same-sex couples in ment might try to pursue a strategy that proved gether with Justice Stevens. Neither Justices
any program that involved federal money with- unsuccessful on the West Coast, where it asked Stevens nor Scalia signed Chief Justice Rob-
out any rational justification. U.S. District Judge Virginia A. Phillips to delay erts’ opinion.
a trial in the Log Cabin Republicans’ challenge
“In the wake of DOMA,” he wrote in GLAD’s to the military ban on openly gay service on the The case arose out of Washington State’s
case, “it is only sexual orientation that differen- ground that legislation was pending to repeal 2009 enactment of a law expanding the state’s
tiates a married couple entitled to federal the ban. Judge Phillips was unwilling to accom- existing domestic partnership bill. Senate Bill
marriage-based benefits from one not so enti- modate them, given uncertainty about when 5688, referred to as the “everything but mar-
tled. And this court can conceive of no way in that might come to a vote. In this case, the gov- riage bill,” built upon the state’s existing do-
which such a difference might be relevant to the ernment might argue that having declared his mestic partnership law to provide that regis-
provision of the benefits at issue. By premising opinion, Judge Tauro should agree to stay his tered domestic partners would have virtually all
eligibility for these benefits on marital status in ruling while the administration sought action the state-law rights of married couples. This
the first instance, the federal government sig- from Congress on the pending DOMA repeal proved to be a step too far for some committed
nals to this court that the relevant distinction to bill, but that bill is not as far along as the mili- opponents of same-sex marriage, who promptly
be drawn is between married individuals and tary policy repeal, which has received an af- began circulating petitions seeking a referen-
unmarried individuals. To further divide the firmative House floor vote and Senate commit- dum to repeal the law. Under Washington pro-
class of married individuals into those with tee vote as part of a Defense Appropriations cedures, if the petitioners acquired sufficient
spouses of the same sex and those with spouses bill. signatures the law would be stopped from going
of the opposite sex is to create a distinction into effect pending the referendum vote. They
without meaning. And where, as here, ‘there is Any appeal would be to the U.S. Court of Ap- got the signatures, and the measure went on the
no reason to believe that the disadvantaged peals for the 1st Circuit. There are six active 2009 general election ballot as Referendum
class is different, in relevant respects’ from a judges on the circuit, and three senior judges 71.
similarly situated class, this court may con- who continue to sit on some cases. Of the active
clude that it is only irrational prejudice that judges, two were appointed by Clinton (Demo-
crat) and one each by Presidents Ronald Rea-

100 Summer 2010 Lesbian/Gay Law Notes

Supporters of the partnership law promptly wide disagreement over the standard the dis- claim is cumulated with the views of Justices
filed a request with the state to receive copies of trict court should use to make that decision. Stevens, Breyer, Ginsburg and Sotomayor, it ap-
the petitions, to which they were entitled under pears that the plaintiffs would probably fail on
a state statute. The referendum proponents The Court’s ruling turned first on the ques- their second claim, since their evidence about
then filed suit in federal court, seeking an in- tion whether people who sign such petitions potential harm was heavily speculative, the ref-
junction against release of the petitions. They have any First Amendment interest in keeping erendum is now long past, and tempers in
argued that the statute authorizing disclosure of their names and addresses secret from the pub- Washington State have undoubtedly cooled
the petitions was unconstitutional because lic. The Court accepted the plaintiffs’ argument since the November balloting. Sotomayor, Ste-
such exposure could deter people from signing that there was a First Amendment interest here, vens, Breyer and Ginsburg all agreed that the
petitions about controversial issues, such as but not an absolute one, and subject to balanc- plaintiffs could not prevail without presenting
same-sex marriage. They also argued that even ing against the state’s interests in disclosure of significant evidence of serious harm were the
if the statute was constitutional, its application such information. The Court found that the petitions to be disclosed. Roberts and Justice
in this case would be unconstitutional due to state’s interests in preventing fraud and provid- Anthony Kennedy signed the majority opinion
the unusual circumstances. They relied on evi- ing transparency in its referendum process are but none of the concurrences, so presumably
dence that supporters of the partnership law strong enough to outweigh, in general, any free their views on this are somewhere between
planned to post the petitions on the internet and speech interests that petition signers might those of Alito and the liberal concurrers.
to encourage people to confront petition sign- have in remaining anonymous, while conced-
ers, and pointed to the experience in California ing that publicizing the names and addresses of The most interesting opinion was, as is fre-
after passage of Proposition 8, when some sup- signers might have the incidental effect of de- quently the case, Justice Scalia’s. Scalia is a
porters of that measure suffered consumer boy- terring some people from signing petitions. proponent of “originalism” in construing con-
cotts, picketing, social ostracism and deroga- stitutional text, so he provides a history lesson
tory comments from supporters of same-sex It was this approach of balancing interests about referenda and voting in America. He
marriage. that led the Court to conclude that in a particu- starts from the proposition that a referendum
lar case petition signers might have a valid process devoted to enacting or repealing bills is
The federal district court quickly accepted claim that their First Amendment interests out- actually a form of legislating, and when indi-
their first argument, ruled that the statute was weighed the state’s interest, requiring a consti- viduals sign petitions to put such referenda on
unconstitutional on its face, and preliminarily tutional exception to the disclosure require- the ballot, they are really acting as legislators,
enjoined release of the petitions pending a full ment. When interests are to be balanced, of not just voters. In that case, the Constitution
trial. The state appealed to the U.S. Court of Ap- course, it makes a difference how much weight tips heavily towards disclosure, since there is
peals for the 9th Circuit, which reversed, con- one assigns to the interests at stake. As to this, no tradition of conducting legislative activities
cluding that the plaintiffs were unlikely to pre- Chief Justice Roberts’ opinion is relatively in secret. He points out that the Constitution re-
vail on their argument that the statute was non-committal, quoting prior cases to the effect quires each house of Congress to publish a jour-
facially unconstitutional. The plaintiffs that plaintiffs might prevail by showing a “rea- nal of its proceedings, recording and reporting
promptly petitioned the Supreme Court to stay sonable probability” that disclosure would lead the votes of their members on questions before
the 9th Circuit’s ruling and keep the injunction to “threats, harassment or reprisals” against the house.
in place, pending a Supreme Court review of the signers. Of course, this comment was dicta,
the merits of the case. The Court agreed to do not necessary to decide the specific question Scalia also points out that from the time the
this, so the petitions were not released prior to before the Court. First Amendment became part of the Constitu-
the election. The referendum was defeated and tion in 1791 until well into the 19th century,
the state’s new domestic partnership law went Roberts had to be non-committal in discuss- there was no established practice of anonymous
into effect. ing the plaintiffs’ exception claim, since any at- voting in the United States. Paper ballots came
tempt to be more specific would have lost sev- into use gradually through the 19th century,
Meanwhile, the plaintiffs petitioned the Su- eral of his opinion signers, depending on how voting machines later still, and the custom in
preme Court to review the 9th Circuit’s opinion, he would advocate weighting the interests at many parts of the country in the early years was
and that petition was granted. The case was ar- stake. Justices Sotomayor, Stevens, Ginsburg for voters to come to the polls and announce
gued on April 28. and Breyer, to judge by their various concur- their votes out loud. That being the case, if one
rences and the concurring opinions they accepts the proposition that the Constitution’s
Apart from Justice Thomas, all of the Court’s signed, would lean towards rejecting an excep- text should be construed to mean what the gen-
members agreed that the Washington statute tion in the absence of strong evidence of serious eration that adopted it would have thought it
authorizing disclosure of the petitions (which consequences to petition signers, while Justice meant, it would be hard to find any sort of right
would include the name and address of every Alito suggested that the evidence the plaintiffs to anonymous voting or legislating in the First
signer) was constitutional. That was all that the had already presented in support of their first Amendment.
Court had to decide directly, since technically claim would probably suffice. Justice Scalia
the only question before the justices was found little support for the argument that the “There are laws against threats and intimi-
whether the district court’s ruling was correct. plaintiffs had a serious First Amendment inter- dation; and harsh criticism, short of unlawful
However, having held that the statute was con- est at stake, and, as at oral argument, was sar- action, is a price our people have traditionally
stitutional, the Supreme Court felt obliged to in- castic about the plaintiffs’ claims. Of course, as been willing to pay for self governance,” wrote
dicate whether the plaintiffs had enough of a Justice Thomas found the statute to be uncon- Scalia. “Requiring people to stand up in public
First Amendment interest at stake to merit con- stitutional, he would have upheld the district for their political acts fosters civic courage,
sideration of their second argument: that due to court’s injunction. without which democracy is doomed. For my
the nature of this case they were entitled to a part, I do not look forward to a society which,
constitutionally mandated exception to the dis- After plotting out the various concurrences thanks to the Supreme Court, campaigns
closure requirement. Almost everybody on the and dissents, one comes to the conclusion that anonymously and even exercises the direct de-
Court agreed that they should have the opportu- there is no majority view on the Court concern- mocracy of initiative and referendum hidden
nity to seek such an exception, with the surpris- ing the circumstances under which a constitu- from public scrutiny and protected from the ac-
ing exception of Justice Scalia, but there was tional exception to the statute would be re- countability of criticism. This does not resem-
quired, but when Justice Scalia’s view that ble the Home of the Brave.” A.S.L.
plaintiffs have no viable First Amendment

Lesbian/Gay Law Notes Summer 2010 101

European Human Rights Court Rejects Same-Sex fact that different-sex couples were able to ligated to adopt such legislation. “While there
Marriage Claim in Schalk & Kopf v. Austria marry, while same-sex couples were not, con- are only slight differences in respect of material
stituted a difference in treatment based on sex- consequences, some substantial differences re-
The case of Schalk and Kopf v. Austria, Applica- ual orientation…[and] that such a difference main in respect of parental rights. However, this
tion No. 30141/04 (ECHR, June 24, 2010), could only be justified by ‘particularly serious corresponds on the whole to the trend in other
was brought in the European Court of Human reasons’. In their contention, no such reasons member States.”
Rights by an Austrian same-sex couple in 2004 existed.” Furthermore, the amici argued, “in
to challenge that country’s refusal to grant them the absence of any objective and rational justi- The Court rejected plaintiffs’ argument that
a marriage license. Plaintiffs argued that deny- fication for the difference in treatment, consid- they should be entitled to compensation be-
ing them marriage rights “constituted a viola- erably less weight should be attached to Euro- cause they were not able to enter into some sort
tion of their right to respect for private and fam- pean consensus.” of legal status at the time they originally ap-
ily life and of the principle of plied. The majority of the Court were not willing
non-discrimination…[and that] there was no The court held with the government, ruling to entertain this argument, finding that al-
objective justification for excluding same-sex that – while the European court recognized though Austria was not in the “vanguard”
couples from concluding marriage, all the more evolving norms around marriage – “the Court among nations establishing registered partner-
so since the European Court of Human Rights notes that there is no European consensus re- ships, it had nonetheless acted ahead of a ma-
had acknowledged that differences based on garding same-sex marriage.” Because “mar- jority of the members of the Council of Europe
sexual orientation required particularly riage has deep-rooted social and cultural con- subject to the Convention. The partially dis-
weighty reasons.” The Austrian high court had notations which may differ largely from one senting judges, while agreeing with much of the
rejected their claim, holding that “Neither the society to another. The Court reiterates that it Court’s opinion, parted company on this issue,
principle of equality set forth in the Austrian must not rush to substitute its own judgment in finding that plaintiffs should be able to seek
Federal Constitution nor the European Conven- place of that of the national authorities, who are compensation for the failure of Austria to pro-
tion on Human Rights (as evidenced by ‘men best placed to assess and respond to the needs vide any legal status for same-sex couples prior
and women’ in Article 12) require that the con- of society.” While conceding that the term to this year. Daniel Redman and A.S.L.
cept of marriage as being geared to the funda- “marriage” no longer invariably refers to differ-
mental possibility of parenthood should be ex- ent sex couples, in light of legislative develop- Wisconsin Supreme Court Rejects Single Subject
tended to relationships of a different kind.” The ments in several countries within the Council of Challenge to Marriage Amendment
European Court rejected their claim for relief, Europe, the Court was not yet ready to enforce a
but seemed to open the door to the possibility new gender-free definition on the entire Coun- The Wisconsin Supreme Court ruled that the
that members of the Council of Europe may cil membership. state’s anti-marriage constitutional amend-
have to move towards providing some legal ment, which bans both same-sex marriages
status for same-sex partners in order to meet Second, the plaintiffs argued that they and, arguably, civil unions or domestic partner-
their non-discrimination obligations under the should be granted equal marriage rights pursu- ships that carry most of the state law rights of
European Convention. ant to Article 8 of the Convention: “Everyone marriage, overwhelmingly adopted by voters in
has the right to respect for his private and fam- November 2006, does not violate the “single
Austria argued that plaintiffs lacked the ily life...[and] [t]here shall be no interference subject” rule. The opinion in McConkey v. Van
European version of ‘standing’ under a Euro- by a public authority with the exercise of this Hollen, No. 2008AP1868, 2010 WI 57 (June
pean Convention provision that states: “The right except...in the interests of national secu- 30, 2010), rejects a challenge that was filed in
Court may at any stage of the proceedings de- rity, public safety or the economic well-being of July 2007 by William McConkey, a voter who
cide to strike an application out of its list of the country, for the prevention of disorder or argued that he should not have been required to
cases where the circumstances lead to the con- crime, for the protection of health or morals, or vote on both prohibitions in the same measure.
clusion that...the matter has been resolved.” for the protection of the rights and freedoms of
Austria made this argument on the basis of the others.” They also cited to Article 14, “The en- The court’s opinion, written by Justice Mi-
Registered Partnership Act that went into effect joyment of the rights and freedoms set forth in chael J. Gableman, affirms a ruling by Dane
this year, which grants same-sex couples some [the] Convention shall be secured without dis- County Circuit Judge Richard G. Niess, finding
measure of recognition. The court rejected this crimination on any ground...” that “both sentences of the marriage amend-
argument, holding that “the applicants’ com- ment relate to marriage and tend to effect or
plaint is that, being a same-sex couple, they do The court held that in light of the evolution of carry out the same general purpose of preserv-
not have access to marriage. This situation still attitudes towards homosexuality and same-sex ing the legal status of marriage in Wisconsin as
obtains following the entry into force of the Reg- couples, “it [is] artificial to maintain the view between only one man and one woman.”
istered Partnership Act.” that, in contrast to a different-sex couple, a
same-sex couple cannot enjoy ‘family life’ for Frustratingly, the opinion dances around the
First, the plaintiffs argued that the Austrian the purposes of Article 8. Consequently the re- real issue in the case without ever honestly tak-
law violated their rights under Article 12 of the lationship of the applicants, a cohabiting ing it on, which is that opinion polls show that
European Convention, which states: “Men and same-sex couple living in a stable de facto part- many voters who oppose same-sex marriage are
women of marriageable age have the right to nership...fall within the notion of ‘private life’ willing to support civil unions for couples who
marry and to found a family, according to the as well as ‘family life’ within the meaning of Ar- are not allowed to marry. Thus, coupling the two
national laws governing the exercise of this ticle 8.” issues in one vote basically forces those voters
right.” The plaintiffs argued that the evolution who want to “protect marriage,” whatever that
of marriage over time led to an understanding Despite that, the Court held that Austria’s means, to ban civil unions at the same time,
that this measure included marriage between Registered Partnership Act, which came into even though they might be willing to allow the
same-sex couples. The government responded force at the beginning of 2010 – although it did state to provide such a legal status for its un-
that this had never been the understanding, and not grant all the rights and responsibilities of married couples. Perhaps the only saving grace
that the original provision clearly referred to marriage – was sufficiently within the Euro- of the opinion is that it doesn’t specifically hold
opposite-sex marriage. Amici non- pean consensus to not violate plaintiffs’ rights that the amendment outlaws civil unions, find-
governmental organizations argued that “The under the Convention, without addressing the ing it unnecessary to address that question in
question, not presented in this case, whether all this case.
member states of the Council of Europe are ob-

102 Summer 2010 Lesbian/Gay Law Notes

The amendment that was placed on the ballot riage, and largely ignored the second sentence. preme court had required the legislature to pro-
in 2006 consisted of two sentences: “Only a It was likely that only those voters who made the vide a legal status with the rights of marriage to
marriage between one man and one woman effort to acquaint themselves fully with the is- same-sex couples, resulting in the nation’s first
shall be valid or recognized as a marriage in sue would be aware that they were voting to ban civil union law, and Massachusetts, where the
this state. A legal status identical or substan- any legal status for same-sex couples, not just state’s supreme court had recently required the
tially similar to that of marriage for unmarried banning same-sex marriage, by voting yes. state to allow same-sex couples to marry. This
individuals shall not be valid or recognized in purpose is reflected in the memo that sponsors
this state.” On its face, this presents the voters Where the court gets hung up in this case is of the amendment sent to state legislators in
with two distinct questions: (1) should same- in its focus on “the purpose” of the amendment, January 2004.
sex couples be allowed to marry? (2) should the while ignoring its effect. That is, the court says
state government be forbidden to create some that the rule it has developed in its single- Referring to this memo, the court said that
legal status to make state law rights of marriage subject jurisprudence is to allow the linking of the sponsors of the amendment “wanted to pro-
available to those who are not permitted to several propositions in a single amendment if tect the current definition and legal status of
marry? they relate to the same subject and have a com- marriage, and to ensure that the requirements
mon purpose. Otherwise, it insists, it would be in the first sentence could not be rendered illu-
The legal challenge that McConkey origi- “absurd” to require voters to separately ap- sory by later legislative or court action recog-
nally filed argued that the amendment, as prove every individual aspect of an amendment nizing or creating identical or substantially
adopted, violated the federal and state constitu- that is intended to accomplish a particular pur- similar legal statuses. The purpose of the mar-
tions’ due process and equal protection pose. riage amendment, then, was to preserve the le-
clauses, as well as the requirement under the gal status of marriage in Wisconsin as between
state constitution “that if more than one amend- For example, at one time Wisconsin voters only one man and one woman. Both proposi-
ment be submitted, they shall be submitted in were presented with a proposal to substantially tions in the amendment tend to effect or carry
such manner that the people may vote for or change the way the legislature was structured out this general purpose.”
against such amendments separately.” Judge by changing the lengths of terms and various
Niess dismissed the constitutional claims, other details. In order to accomplish this, many The court never mentions the polling data
agreeing with the state that McConkey did not individual changes had to be made, not least showing that voters have differing views about
have standing as a plaintiff to challenge the because the state has a bicameral legislature the desirability or permissibility of same-sex
amendment on substantive constitutional with different terms for the different houses. In marriage as against civil unions, and never
grounds, because as a heterosexually married a challenge to that amendment, the court had really confronts directly the argument that by
man he had no individual stake in the matter. said that it made sense to present the entire coupling the propositions in one ballot ques-
(By contrast, plaintiffs in the pending federal package to voters, and not have them separately tion, the legislature forced voters to make two
court challenge to California Proposition 8, voting on each provision. policy decisions in one vote. To this court, the
Perry v. Schwarzenegger, have standing to raise two are such closely related questions that
the constitutional issues because they are two Thus, the standard the court embraces is that there is no problem in requiring voters to ap-
same-sex couples who desire to marry but are “the legislature may submit multiple proposi- prove or reject them as a package, although the
prevented from doing so by Prop 8.) tions within one proposed amendment so long court ignores their differential impact, because
as those propositions tend to effect and carry the overall purpose of the amendment, as iden-
Niess found, however, that McConkey had out one general purpose and are connected with tified by the court, is to preserve the “unique”
standing as a voter to raise the question whether one subject.” status of traditional heterosexual marraige. A
his rights were violated by having to vote on ballot title more accurately describing the
both provisions of the marriage amendment in “A plain reading of the text of the amend- amendment in terms of its effect might have
tandem. As to that, Judge Niess, and the Su- ment, in which both propositions expressly re- been devised to signal to voters that it would
preme Court in agreement with him, found that fer to ‘marriage,’ makes clear that the general deny any legal status carrying marital rights
“both propositions related to the subject matter subject matter of the amendment is marriage,” and responsibilities to same-sex couples, in or-
of marriage and were designed to accomplish wrote Justice Gableman. “Before the marriage der to reserve all those rights and responsibili-
the same purpose: ‘the preservation and pro- amendment was adopted, marriage in Wiscon- ties exclusively for traditionally-married het-
tection of the unique and historical status of tra- sin was already limited by statute to the unions erosexual couples.
ditional marriage.’” of one man and one woman. This amendment
was therefore an effort to preserve and constitu- By not opining on whether a civil union law
Many states have adopted the single-subject tionalize the status quo, not to alter the existing would violate the amendment, the court seems
requirement, but attempts to challenge some of character or legal status of marriage. The first to leave that possibility open, depending on
the wide-ranging anti-marriage amendments sentence preserves the one man-one woman whether a legal status that would carry no legal
that have been on state ballots over the past character of marriage by so limiting marriage rights under federal law would be adjudged suf-
decade based on this requirement have been entered into or recognized in Wisconsin. The ficiently dissimilar to marriage to pass muster.
notably unsuccessful in state courts. The result second sentence, by its plain terms, ensures In this connection, it is worth noting that sev-
turns, as is frequently the case, on how one that no legislature, court, or any other govern- eral supreme courts of other states have re-
characterizes the question. In this case, close ment entity can get around the first sentence by cently discerned sufficient differences between
scrutiny of the process by which this amend- creating or recognizing ‘a legal status identical marriage and either civil unions or domestic
ment was placed before the voters should have or substantially similar to that of marriage.’ We partnerships to make them different and une-
raised serious concerns by the court about de- need not decide what legal statuses identical or qual institutions for purposes of state equal pro-
ception and mislabeling, since the ballot title substantially similar to marriage are prohibited tection analysis.
for this amendment focused entirely on limiting by this clause in order to understand its plan
marriage to one man and one woman, and did and general purpose.” McConkey is represented in the lawsuit by
not mention the ancillary purpose of forbidding Lester A. Pines, Tamara B. Packard, and Ed-
any alternative legal status for unmarried cou- The court asserted that the motivation for this ward S. Marion. Attorney General J.B. Van Hol-
ples. Furthermore, the campaign waged for its amendment, which was first introduced in the len, the named defendant, was represented by
passage focused on preventing same-sex mar- legislature in 2004, was to prevent Wisconsin Assistant Attorney General Lewis W. Beilin.
from following the path that had been trod up to
that point by Vermont, where the state’s su-

Lesbian/Gay Law Notes Summer 2010 103

Although this was a private voter lawsuit The District’s same-sex marriage law took on [nor against discrimination that falls short of
rather than an action instigated by LGBT pub- important extra-territorial impact when Mary- persecution, which often involves imprison-
lic interest groups, the case attracted organiza- land’s Attorney General ruled that same-sex ment, or physical violence committed by state
tion amicus briefs on both sides of the issue. marriages contracted elsewhere would be rec- or private actors]. ... [ii] If ... the tribunal con-
ACLU and Lambda Legal and the League of ognized in Maryland, leading to a stream of gay cludes that a material reason for the applicant
Women Voters supported McConkey’s appeal, Marylanders to D.C. for weddings. This repre- living discreetly on his return would be a fear of
while the Wisconsin Family Council (repre- sents lost business for Maryland, whose legisla- the persecution which would follow if he were to
sented by Alliance Defense Fund), and an or- ture has thus far refused to advance a same-sex live openly as a gay man, then, other things be-
ganization calling itself “Community Leaders marriage bill. A.S.L. ing equal, his application should be accepted.
Dedicated to Children Raised by Married Such a person has a well-founded fear of perse-
Mothers and Fathers,” filed briefs defending U.K. Supreme Court Rules in Gay Asylum Appeal cution. To reject his application on the ground
the amendment. A.S.L. that Assessment of Risk of Persecution in Home that he could avoid the persecution by living
County Should Assume “Open” Rather Than discreetly would be to defeat the very right
D.C. Court of Appeals Rejects Demand for “Discreet” Behavior which the Convention exists to protect – his
Referendum on Marriage Definition right to live freely and openly as a gay man
On July 7, in H.J. (Iran) & H.T. (Cameroon) v. without fear of persecution. ...”
The District of Columbia Court of Appeals re- Secretary of State for the Home Department,
jected an attempt by opponents of same-sex [2010] UKSC 31, the UK Supreme Court (suc- In recognizing the right of lesbian and gay
marriage to force a referendum on the subject, cessor to the Law Committee of the House of refugees to live openly in their home countries,
ruling 5-4 in Jackson v. D.C. Board of Elections Lords) reviewed the U.K. Government’s policy the Supreme Court removed the inconsistency
and Ethics, 2010 WL 2771743 (July 15, of returning lesbian and gay refugees to their between asylum claims based on sexual orien-
2010), that the defendants had correctly con- home countries if they were likely to be “dis- tation and those based on race, religion, or po-
strued District laws to bar a referendum that creet” (closeted about their sexual orientation) litical opinion. Members of ethnic or religious
would have the effect of mandating discrimina- after their return, to avoid persecution, and if minorities, and pro-democracy political dissi-
tion in violation of the District’s human rights their “discretion” appeared likely to protect dents, have never been asked to hide their eth-
law, which forbids sexual orientation discrimi- them against persecution (thus making their nicity, religion, or political beliefs. Sir John Dy-
nation. The court was unanimous in its view fear of persecution not “well-founded”). By 5 son made this clear at para. 110: “If the price
that the referendum would have that discrimi- votes to 0, the Court rejected this interpretation that a person must pay in order to avoid perse-
natory effect, but divided over the validity of a of the “Convention relating to the Status of cution is that he must conceal his race, religion,
District law forbidding referenda that would Refugees 1951, as applied by the 1967 Proto- nationality, membership of a social group [in-
have such an effect. col.” The U.K. is a party to both the Convention cluding lesbian and gay persons] or political
and the Protocol; the U.S. is a party only to the opinion, then he is being required to surrender
The dissenters believed that the District Protocol, which has a slightly different defini- the very protection that the Convention is in-
Council exceeded its authority by establishing tion of “refugee” and a provision on federal sys- tended to secure for him.”
that subject matter limitation on referenda, tems.
reading language on the subject of referenda in Lord Rodger observed (at para. 76) that
the District’s charter more restrictively than the At para. 82, Lord Rodger (with the express “[n]o-one would proceed on the basis that a
majority would do. The majority rested its rul- support of 3 other judges) summarised the new straight man or woman could find it reasonably
ing on the vagueness and ambiguity of the char- interpretation as follows (and this interpreta- tolerable to conceal his or her sexual identity
ter language on point, together with an analysis tion should be highly persuasive for U.S. and indefinitely to avoid suffering persecution. Nor
of the factual context in the late 1970s when other courts interpreting the Convention and ... that a man or woman could find it reasonably
these measures were adopted as part of the pro- Protocol): “... [1] the tribunal must first ask it- tolerable to conceal his or her race indefinitely
cess of increasing home rule powers of the Dis- self whether it is satisfied on the evidence that ... Such an assumption about gay men and les-
trict’s government. [the applicant] is gay, or ... would be treated as bian women is equally unacceptable.”
gay by potential persecutors ... [2] If so, the tri-
The proposed referendum would have bunal must then ask itself whether ... gay peo- The fact that the lesbian or gay refugee, if re-
placed into District Law a definition of mar- ple who lived openly would be liable to perse- turned to their home country, would be forced to
riage limited to different-sex couples. Last year, cution in the applicant’s country of nationality. live “discreetly” to avoid persecution is irrele-
the District Council passed a measure early in [3] If so, the tribunal must go on to consider vant, i.e., “discreet” behaviour coerced, even
the year providing that the District would rec- what the ... applicant would do if he were re- partly, by fear of persecution does not count. As
ognize same-sex marriages contracted else- turned to that country. [a] If [he] would in fact Lord Rodger said at para. 59: “Unless he were
where and, after that measure survived the live openly and thereby be exposed to a real minded to swell the ranks of gay martyrs, when
Congressional review process unscathed, risk of persecution, then he has a well-founded faced with a real threat of persecution, the ap-
passed a measure late in the year authorizing fear of persecution — even if he could avoid the plicant would have no real choice: he would be
same-sex marriages. The referendum proposal risk by living ‘discreetly’. [b] If ... [he] would in compelled to act discreetly.” Several judges re-
was submitted by same-sex marriage propo- fact live discreetly and so avoid persecution, inforced this point by citing the case of Anne
nents in response to the earlier District [the tribunal] must go on to ask itself why he Frank. At para. 107, Lord Collins described as
marriage-recognition measure, but was turned would do so. [i] If ... [he] would choose to live “absurd and unreal” the argument that “had it
down by the Board of Elections. discreetly simply because that was how he him- been found that on return to Holland [from the
self would wish to live, or because of social UK] she would successfully avoid detection by
An attempt by the plaintiffs to stay effective- pressures, e g, not wanting to distress his par- hiding in the attic, then she would not be at real
ness of the marriage law pending resolution of ents or embarrass his friends, then his applica- risk of persecution by the Nazis, and the ques-
this case was denied by the courts (including by tion should be rejected. Social pressures of that tion would be whether permanent enforced
Supreme Court Chief Justice John Roberts, who kind do not amount to persecution and the Con- confinement in the attic would itself amount to
serves as circuit justice for appeals from the vention does not offer protection against them persecution ... It is plain that it [was] the threat
D.C. courts), and it went into effect in March. to Jews [who lived openly] of the concentration

104 Summer 2010 Lesbian/Gay Law Notes

camp and the gas chamber which constitute[d] judges expressed any concern about “opening vember 20, 2006 that because Christine had
the persecution.” the floodgates,” ie, about millions of lesbian not obtained a full Gender Recognition Certifi-
and gay persons leaving countries where they cate under the Gender Recognition Act 2004
What did the Court mean by being “open” would risk persecution if they lived openly, and (GRA), she was not entitled to legal recognition
about being lesbian or gay? Lord Hope referred travelling to the U.K. to seek asylum. On the of her new gender and so was not entitled to
(at para. 11) to “their fundamental right to be contrary, Lord Hope said (at para. 3): “The fact claim her state pension as a woman from the age
what they are – of the right to do simple, every- is that a huge gulf has opened up in attitudes to of 60.
day things with others of the same orientation and understanding of gay persons between so-
such as living or spending time together or ex- cieties [eg, Western Europe vs. Iran, Uganda The GRA was passed on July 1, 2004 and be-
pressing their affection for each other in pub- and Malawi] ... It is one of the most demanding came effective April 4, 2005. The GRA created
lic.” Lord Rodger described (at para. 77) living social issues of our time. Our own government a Gender Recognition Panel, to which an appli-
“discreetly” as “avoid[ing] any open expres- has pledged to do what it can to resolve the cant may apply for a Gender Recognition Cer-
sion of affection for another man which went be- problem [of persecution in other countries], but tificate, recording that the applicant has
yond what would be acceptable behaviour on it seems likely to grow and to remain with us for changed gender and intends to continue to live
the part of a straight man[,] ... be[ing] cautious many years. In the meantime more and more until death in the acquired gender. In order for a
about the ... the places where he socialised[,] ... gays and lesbians are likely to have to seek pro- married person to receive a full Gender Recog-
constantly ... restrain[ing] himself in an area of tection here ... It is crucially important that they nition Certificate, in addition to various statu-
life where powerful emotions and physical at- are provided with the protection that they are tory requirements, he or she must have been
traction are involved and a straight man could entitled to under the Convention ...” Robert granted a divorce.
be spontaneous, impulsive even. Not only Wintemute, Faculty of Laws, King’s College,
would he not be able to indulge openly in the London Meanwhile, Christine appealed the AT’s de-
mild flirtations which are an enjoyable part of cision to the Administrative Appeal Chamber of
heterosexual life, but he would have to think United Kingdom Improperly Denied Transsexual the Upper Tribunal (UT). However, prior to a
twice before revealing that he was attracted to Woman Pension Benefits hearing before the UT, the SSWP decided that
another man.” Christine had made a valid claim for a state
On June 22, a transsexual woman from the pension on August 21, 2002. On January 18,
He then illustrated (at para. 78) living openly United Kingdom won the right to receive pen- 2008 though, the SSWP decided that Christi-
“with trivial stereotypical examples from Brit- sion benefits as a woman despite being married ne’s claim from August 21, 2002 should be de-
ish society: just as male heterosexuals are free to another woman, in a ruling by the U.K. Court nied.
to enjoy themselves playing rugby, drinking of Appeal. Timbrell v. Secretary of State for Work
beer and talking about girls with their mates, so and Pensions, Case No: C3/2009/1903 (Court The Secretary of State nonetheless took a po-
male homosexuals are to be free to enjoy them- of Appeal [Civil Division]). sition on Christine’s appeal to the UT. Therein,
selves going to Kylie [Minogue] concerts, the Secretary of State argued that: [1] Christine
drinking exotically coloured cocktails and talk- Christine Timbrell was born on July 17, had made a valid claim in August 2002; [2] the
ing about boys with their straight female mates. 1951, as a male. She married and had two chil- AT’s decision that the requirements of the GRA
Mutatis mutandis – and in many cases [eg, Iran dren with a woman named Joy while she was in had to be fulfilled before Christine could claim
and Cameroon] the adaptations would obvi- her twenties. In the late 1990s, Christine began a pension was wrong; and [3] that Christine’s
ously be great – the same must apply to other seeing a psychiatrist and was treated for gender existing marriage should have no bearing on
societies. In other words, gay men are to be as dysphoria. In October 2000, with Joy’s con- her right to a state retirement pension. The
free as their straight equivalents in the society sent, Christine underwent gender reassignment SSWP requested that the matter be remitted
concerned to live their lives in the way that is surgery. Joy and Christine remain married to back to him.
natural to them as gay men, without the fear of this day.
persecution.” However, he added (at para. 79) The UT disagreed with the Secretary of State.
that “an applicant for asylum does not need to On July 17, 2001, Christine turned 60. Be- In a decision dated March 12, 2009, UT Judge
show that his homosexuality plays a particu- cause Christine was born before April 6, 1959, Jupp held that Christine was not entitled to a
larly prominent part in his life.” if Christine is legally recognized as a woman, state retirement pension before her 65th birth-
she would be entitled to receive pension bene- day because “she does not satisfy the criteria to
Sir John Dyson stressed (at paras. 128-30), fits at age 60. If she is recognized as a man, be treated as a woman in all respects which
that the hypothetical “right to be open back however, she can only begin receiving these (subject to satisfaction of other legislated con-
home” is based on “objective human rights benefits at age 65. On August 6, 2002, after ditions) could entitle her to receive a Category
standards,” not “the social mores of the home Christine had turned 60, she applied to the In- A state pension at the age of 60 under Directive
country.” He disagreed with Lord Justice Pill’s land Revenue National Insurance Contribu- 79/7/EEC.”
statement, in the reversed decision of the Eng- tions Office (IRNICO) to receive her state pen-
land and Wales Court of Appeal, [2009] EWCA sion. The UK Court of Appeals does not Directive 79/7/EEC is a European Council
Civ 172, that “....a degree of respect for social specifically note any decision made by the IR- Directive dated December 19, 1978, which di-
norms and religious beliefs in other states is ... NICO, but states that Christine’s application rects member states (of which the UK is one) to
appropriate. Both in Muslim Iran and Roman was not “dealt with promptly.” In any event, in ensure that men and women are treated equally
Catholic Cameroon, strong views are genuinely March 2006, Christine made a further claim to in matters of social security and other “ele-
held about homosexual practices. In consider- the Secretary of State for the Department of ments of social protection.” To wit, member
ing what is reasonably tolerable [by a lesbian or Work and Pensions (SSWP) to receive her state states are required to ensure that there is no
gay person] in a particular society, the fact- pension benefits from her 60th birthday. On discrimination whatsoever on grounds of sex ei-
finding Tribunal is ... entitled to have regard to April 11, 2006, the SSWP decided that Chris- ther directly or indirectly by reference in par-
the beliefs held [by the majority] there.” tine was entitled to a state pension, but only ticular to marital or family status. Further, mem-
from her 65th birthday. ber states must “take measures necessary to
Unlike in the case of HIV+ persons who ensure that any laws, regulations and adminis-
cannot access or afford medications in their Christine appealed the SSWP decision to the trative provisions contrary to the principle of
home countries (N. v. U.K., European Court of Appeal Tribunal (AT). The AT decided on No- equal treatment are abolished.”
Human Rights, 27 May 2008), none of the
Christine appealed the UT’s decision to the
Court of Appeal. At this stage of the appellate

Lesbian/Gay Law Notes Summer 2010 105

process, the SSWP did not adopt the same Sometimes Ignorance of the Law Is An Excuse; ades for the state legislature to get around to re-
position it had before the UT, but instead op- Uninformed Cop Accorded Immunity From pealing the sodomy law, which was held uncon-
posed Christine’s appeal. Liability for Unconstitutional Loitering Arrest stitutional in 1980. And it has still not acted to
clean up the loitering statute. There are still
In a written decision by Lord Justice Aikens, An Ithaca, New York, undercover police officer some state legislatures that have not revised
the Court of Appeal reversed the UT, and held could not be held personally liable for making their sex crimes laws in response to the U.S. Su-
that the SSWP was obligated to recognize an unconstitutional arrest, ruled the U.S. Court preme Court’s 2003 ruling in LLawrence v.
Christine as a woman eligible to receive pen- of Appeals for the 2nd Circuit on June 22, be- Texas that the Constitution forbids criminaliz-
sion benefits from her 60th birthday. The court cause the state legislature has not repealed or ing consensual sodomy in private between
rejected the UT’s reliance on the GRA as a ba- relevantly amended the statute criminalizing adults.
sis for denying Christine’s pension, noting that loitering for the purpose of soliciting oral or
the effective provisions of this statute were not anal sex to cure its constitutional deficiencies Several years after the charges were dis-
retrospective. The legal underpinning to the and the unconstitutional statute continues to missed, Amore decided to seek compensation,
court’s decision involved the interplay between appear in penal law materials given to police of- filing a complaint in the U.S. District Court un-
Article 4(1) of Directive 79/7 and the European ficers for use in their job. Reversing a decision der 42 USC section 1983, a jurisdictional stat-
Court of Justice’s (ECJ) decision in Richards v. by U.S. District Judge Frederick J. Scullin, Jr., ute authorizing suits against the government for
Secretary of State for Work and Pensions (April of the Northern District of New York in Amore v. violations of constitutional rights. Amore sued
27, 2006). Novarro, 2010 WL 2490017, the court ruled in two defendants: Officer Novarro, for false ar-
an opinion by Circuit Judge Robert D. Sack that rest, malicious prosecution, abuse of process,
The facts in Richards are very similar to the the ignorant police officer enjoys qualified im- and violation of equal protection of the laws;
facts in Chistine’s case. The only real distinc- munity from liability. and the City of Ithaca, for failure to train city
tion was that Sarah Richards was not married. employees and for maintaining an improper
Sarah, a male to female transsexual, applied for According to Judge Sack’s opinion, plaintiff policy, custom or practice of permitting officers
pension benefits after turning 60 and after hav- Joseph Amore encountered Officer Andrew to make arrests under the unconstitutional loi-
ing undergone gender reassignment surgery. Novarro in Stewart Park in Ithaca, New York, on tering statute.
The ECJ held that under Directive 79/7/EEC, October 19, 2001. Novarro was working under-
the refusal of a retirement pension to a male to cover “watching for drug activity.” Not realiz- In pretrial motion practice, District Judge
female transsexual until the age of 65 was pro- ing that Novarro was a police officer, Amore Scullin denied a motion for summary judgment
hibited if that person would have been entitled “offered to perform a sexual act on him” and by plaintiff Amore, while granting Novarro’s
to such a pension at the age of 60 had she been was arrested. Novarro called for back-up in or- motion for summary judgment on the claims of
held to be a woman as a matter of national law. der to get a ticket to fill out and to consult the malicious prosecution, abuse of process, and
The ECJ specifically noted that the scope of Di- statute book to determine the charge. Novarro equal protection, and the City of Ithaca’s mo-
rective 79/7/EEC was not limited to discrimi- told Amore that the police were “cracking tion to reject the claim of maintaining an im-
nation on the basis of gender, but rather, should down” on this kind of conduct. The statute book proper policy or custom. However, Judge
“apply to discrimination arising from the gen- available to police officers includes the uncon- Scullin rejected Amore’s motion for summary
der reassignment of the person concerned.” stitutional loitering statute, N.Y. Penal Law sec- judgment on the false arrest claim, finding that
Therefore, UK legislation, or the lack thereof tion 240.35(3), which was invalidated by the because the Court of Appeals had invalidated
prior to the GRA, was precluded by Article 4 of New York Court of Appeals in People v. Uplin- the loitering statute, Novarro lacked probable
Directive 79/7/EEC because Sarah Richards ger, 58 N.Y.2d 936 (1983). Officer Novarro cause to arrest Amore, and that Novarro’s claim
was not equally treated like a woman as a mat- charged Amore with a violation of this provi- of immunity from suit was invalid because
ter of national law. sion. Amore’s right not to be arrested under the stat-
ute was “clearly established” as a matter of law.
Relatedly, the court rejected the SSWP’s ar- Of course, a lawyer researching the issue us- Judge Scullin also denied the city’s summary
gument that Christine should simply be enti- ing the annotated statute or an on-line resource judgment motion on the failure to train claim,
tled to damages for the UK’s failure to imple- such as westlaw or lexis would immediately see which is still pending before the court for trial.
ment Directive 79/7 fully. Lord Justice Aikens that the statute was declare unconstitutional,
stated that this would not be in keeping with the but the version of the penal law given to police Officer Novarro appealed the court’s refusal
“clear, precise and unconditional terms” of the officers does not include case law annotations, to grant him immunity from suit, arguing that
Directive. just the plain text of the statute. based on what he knew at the time, he acted
reasonably in arresting Amore because the stat-
Because the Court of Appeal refused to retro- Amore moved in Ithaca City Court to dismiss ute was in the copy of the Penal Law available to
actively apply the GRA to Christine’s case, the the charge on the ground that the statute was him and Amore’s conduct fell squarely within
issue of whether the GRA is consistent with Di- unconstitutional. The city prosecutor agreed, the prohibition of the statute. The 2nd Circuit
rective 79/7/EEC has been left for another day. joining in the motion. The city judge granted panel, which took eleven months from the time
It is worth mentioning that in subsequent press the motion, observing that it was “puzzling” of argument until it issued its opinion, agreed
stories, Christine has been quoted saying that that a statute that had been declared unconsti- with Officer Novarro.
the Department for Work and Pensions wanted tutional continued to be published in the offi-
her to divorce Joy in order to be eligible for her cial New York statutes, “as if it is still a viable “We conclude that Novarro is entitled to
pension benefits at age 60 (Daily Mail [UK], statute. It is hard to understand why the Legis- qualified immunity under these circum-
June 23, 2010, 2010 WLNR 12692519). This lature would continue this statute on the books, stances,” wrote Sack. “It was unreasonable to
argument was not raised or otherwise ad- given that it is now close to 20 years since it was expect this police officer to know that a statute
dressed in the court’s decision.Eric Wursthorn determined to be unconstitutional.” that was, and is, still on the books and being en-
forced had been held to be unconstitutional. We
The judge’s comments were rather naive (or therefore reverse that part of the district court’s
perhaps ironic?), considering the lack of intes- order dismissing Novarro’s motion for summary
tinal fortitude common among state legislators judgment on the false arrest claim based on
when called upon to clean up unconstitutional qualified immunity, and remand the cause with
sex crimes statutes. It took more than two dec- instructions to grant the motion.”

106 Summer 2010 Lesbian/Gay Law Notes

The comment about the statute “still being visor and the chief legal counsel to the Georgia fired her. The reasons Brumby gave Glenn at
enforced” is not inaccurate. On April 26, U.S. legislature, Sewell R. Brumby, filed a cross- that time were that her transition would make
District Judge Shira Scheindlin held the City of motion for summary judgment on each claim. other employees uncomfortable and that it may
New York in contempt for continuing to enforce District Judge richard W. Story found in favor of be viewed by members of the legislature as im-
the loitering statute, even in the face of a long- Glenn on her sexual discrimination claim, but moral, leading to a loss of confidence in the
running lawsuit brought on behalf of people denied her motion for summary judgment on work being done by the OLC. Brumby also later
who have been unconstitutionally arrested. her claim for medical condition discrimination. cited a concern for possible lawsuits that could
And, Judge Sack noted, the N.Y. City Parks De- result from Glenn using the women’s restrooms
partment issued two summonses for violations Born biologically male, Glenn was diag- at work as Glenn has not yet undergone sexual
of the statute on April 6 of this year, citing Judge nosed with Gender Identity Disorder (GID) in reassignment surgery. However, Brumby did
Scheindlin’s decision in Casale v. Kelly, which the early part of 2005. Shortly afterwards, she not mention this concern to Glenn at the time
noted the recent enforcement activity in finding began to take steps to transition from a man to a she was terminated, doing so only afterwards in
that New York City had failed to take adequate woman. She began hormone therapy, undertook order to further his argument that he fired
steps to end improper enforcement of the stat- cosmetic procedures in order to give herself a Glenn to protect government interests. Addi-
ute. more feminine appearance, and began dressing tionally, Glenn argues that such a concern is
and presenting herself as a woman outside of invalid because the OLC has four private, sin-
In light of the jurisprudence on qualified im- work. At the time she was hired by the OLC as gle occupancy bathrooms that she could use,
munity, the court’s decision seems to make an editor in October 2005, Glenn was still using and therefore avoid using the women’s
practical sense. Police officers are not legal her given name, Glenn Morrison, and present- restrooms altogether.
scholars and cannot be expected to make up for ing herself as a man in the workplace.
the deficiencies of the Legislature, the Police Following her termination, Glenn filed dis-
Academy, and the criminal justice administra- In the spring of 2006, Glenn’s therapist, Dr. crimination claims against Brumby and four
tors who fail to incorporate appropriate changes Erin Swenson, recommended that Glenn begin other government officials: Glenn Richardson,
into the law in response to final court rulings, to live life as a woman full-time. Glenn in- Eric Johnson, Robyn J. Underwood and Lieu-
and so it follows that police officers should not formed her direct supervisor and the senior edi- tenant Governor Casey Cagle. However, after
be held personally liable when they ignorantly tor at the OLC, Beth Yinger, that she was trans- discovery, Glenn determined that Brumby
enforce unconstitutional statutes under such gendered and was in the process of making the alone made the decision to fire her. She then
circumstances. This does not mean, of course, transition from male to female. However, Glenn filed a motion for order of dismissal of the four
that Amore should be without any redress for continued to present herself as a man while at other defendants which was granted by the
his unlawful arrest. He continues to maintain work. On only one occasion did she go to work court, leaving Brumby the sole defendant.
his claim against the City of Ithaca, which has dressed as a woman, on Halloween in 2006. In
failed to provide appropriate training to its po- response to her appearance, Brumby asked Glenn brought her claims under 42 U.S.C.
lice officers so they will not mistakenly enforce Glenn to go home early because he found the sec. 1983, under which people can seek relief
an unconstitutional statute. way she was dressed inappropriate. Brumby for actions that have “deprived [them] of a right
stated that he thought it was “unnatural” for a secured by the Constitution and laws.” Glenn
Presumably, having suffered the dismissal of man to dress as a woman and that “it’s unset- asserts that by firing her for being transgen-
the charges against Amore and the notoriety of tling to think of someone dressed in women’s dered, Brumby violated her rights to equal pro-
this resulting lawsuit, Office Novarro is now clothing with male sexual organs inside that tection under the 14th Amendment, discrimi-
well-informed that the loitering statute is un- clothing.” nating against her based both on her sex and
constitutional, but it remains for the City of Ith- her medical condition. In order to successfully
aca and, indeed, for all law enforcement agen- In the fall of 2007, Glenn decided that she bring a claim under the Equal Protection
cies in the state to figure out an appropriate was ready to act on Dr. Swenson’s recommenda- Clause, a person must establish that he or she is
mechanism for re-educating law enforcement tion and continue her transition by living as a a member of an identifiable group, was treated
personnel when the courts invalidate penal woman full-time. She informed Yinger that she differently than those similarly situated and
laws, and for the state Legislature to take appro- intended to legally change her name and to be- that this treatment was because of his or her
priate action in response to such court rulings gin attending work dressed as a woman. In or- membership in that group.
to keep the statute books up to date. A.S.L. der to help Yinger understand GID and what
was involved in transitioning, Glenn provided The court held that Glenn is a member of an
Federal District Court Allows Constitutional Sex Yinger with written materials describing GID identifiable group for both of her discrimination
Discrimination Claim by Transgendered Employee and pictures of Glenn dressed as a woman. claims. For the purposes of her claim for medi-
Discharged by Georgia Legislative Office When Yinger presented these documents to cal condition discrimination, Glenn’s diagnosis
Brumby and informed him that Glenn was of GID places her within an identifiable class.
On July 2, 2010, the U.S. District Court for the transgendered and in the process of transition- Of greater dispute, however, was whether or not
Northern District of Georgia granted summary ing, Brumby told Yinger that he planned to fire Glenn belonged to an identifiable group based
judgment in part to a former employee of the Glenn. Brumby made no remarks indicating on her sex. The defendant argued that Glenn
Georgia General Assembly’s Office of Legisla- that he was dissatisfied with Glenn’s work per- was not discriminated based on her sex, but on
tive Counsel (OLC) who was terminated from formance. Rather, he made the express state- her intent to transition sexes. Glenn was there-
her position after informing her supervisor that ment to Bradley Alexander, the Lieutenant fore, according to Brumby, not fired because of
she is transgendered and intended to begin pre- Governor’s Chief of Staff, that Brumby’s deci- her sex, but because she is transgendered.
senting herself as a woman at work. Glenn v. sion to terminate Glenn was not based on poor
Brumby, No. 1:08-CV-2360-RWS (N.D.Ga., performance but on the fact that Glenn is trans- However, Glenn’s sex discrimination claim
July 2, 2010). The plaintiff, Vandiver Elizabeth gendered and intended to go to work presenting was not based on the argument that Glenn was
Glenn, filed a motion for summary judgment on herself as a woman. fired for her sex per se, but that she was fired for
both her 14th Amendment sexual discrimina- not conforming to Brumby’s expectations of
tion claim and her medical condition discrimi- On October 16, 2007, Brumby asked Glenn how a man should dress and behave. Gender
nation claim. The defendant, her former super- if she still intended to transition from a man to a stereotyping, as addressed in Price Waterhouse
woman. When Glenn answered yes, Brumby v. Hopkins, has been recognized by the Su-
preme Court as a form of sex discrimination

Lesbian/Gay Law Notes Summer 2010 107

within Title VII of the Civil Rights Act of 1964. ating Brumby’s actions in relation to Glenn’s would impair the work environment of the OLC
490 U.S. 228 (1989). In that case, Hopkins, a sex discrimination claim, the court applied in- office and cause the legislators to lose confi-
manager for Price Waterhouse, brought a sex termediate scrutiny, a heightened level of scru- dence in the OLC. The court did not find either
discrimination claim against her employer, ar- tiny applied to discrimination claims based on of these reasons to be “exceedingly persuasive
guing that she had been denied partnership in sex or illegitimacy. To meet this level of scru- justification” for Glenn’s termination. There
the company because she did not conform to tiny, a defendant must establish that the appar- was no evidence that Glenn presenting herself
her supervisors’ idea of how women should ent discriminatory actions were taken as part of as a woman in the workplace would affect the
dress, talk or act. Several comments were made an important government objective. Brumby ar- work of others. Brumby asked two OLC attor-
to Hopkins by partners that if she behaved more gued that if Glenn were allowed to present her- neys prior to terminating Glenn how they would
“femininely,” she would have a better chance self as a woman at work, it would make the OLC feel about working with someone who is trans-
of being named partner. While Hopkins was not vulnerable to lawsuits resulting from Glenn’s gendered and neither expressed any concerns.
discriminated against directly because of her use of the women’s restrooms. Brumby did not Also, when Brumby discussed firing Glenn
sex, the Supreme Court held that discrimina- argue in his reply brief that his actions met this with several government officials, including
tion based on someone’s failure to conform to standard of scrutiny, because his argument fo- Lieutenant Governor Cagle, no one expressed
gender stereotypes based on that person’s bio- cused almost exclusively on Glenn not being a any sentiment that would indicate their confi-
logical sex is a form of sex discrimination. Al- member of a protected class and therefore hav- dence in the OLC would decline if one of the
though Glenn did not bring her claim under Ti- ing no valid sex discrimination claim. Although employees was transgendered. While the opin-
tle VII, the court held that it is appropriate to Brumby did not make an express argument that ion of a few people cannot be considered the
apply the same definition of sex discrimination his actions were based on a legitimate govern- view of the entire OLC office or the Georgia
to a claim brought under the Equal Protection ment objective, the court examined the eviden- Legislature, the court does make it a point to
Clause. While transsexuals are not generally tiary record for the reasons Brumby gave for differentiate between valid concerns about the
viewed as a protected class for the purpose of Glenn’s termination to determine if a valid gov- work environment and negative opinions. Per-
discrimination based on sex, transsexuals who ernment interest was present at the time Glenn sonal prejudices “cannot serve as a sufficient
have experienced discrimination because of was fired. basis for discrimination and does not constitute
their failure to conform to gender stereotypes an important government interest.” Some em-
are “members of a protected class based on The central argument Brumby made for vali- ployees of the OLC, Brumby included, may
sex.” dating Glenn’s termination is that if a person have negative reactions to transgendered em-
who is biologically male but who has not under- ployees, but catering to these opinions is not a
A person asserting a sex discrimination gone sexual reassignment surgery uses the government interest and should not be pro-
claim under the 14th Amendment must also es- women’s restroom, lawsuits for sexual harass- tected by the courts.
tablish that the discrimination was done inten- ment and invasion of privacy will result. The
tionally and based upon the person’s member- court held that this argument does not meet the While the court found that Brumby’s reasons
ship in an identifiable group. Here, the court level of scrutiny that is required of a sex dis- for terminating Glenn did not survive the level
followed the framework for analyzing a dis- crimination claim. Under intermediate scru- of scrutiny applied to sex discrimination
crimination claim established in McDonnell tiny, there must be evidence that the govern- claims, the court held that these same reasons
Douglas Corp. v. Green, 411 U.S. 792 (1973). ment interest was “genuine” and grounded in did meet the scrutiny applied to medical condi-
Although McDonnell Douglas was a Title VII an “actual concern.” There was no evidence tion discrimination claims. Glenn argued that
case, the same process for determining if a per- that Glenn used or attempted to use a women’s by not allowing her to present herself as a
son has a valid discrimination claim is applied restroom at work prior to being terminated or woman in the workplace, Brumby was denying
to equal protection claims. Under McDonnell that any employee who was informed of Glenn’s her the real-life experience that is an accepted
Douglas, the plaintiff must first establish that intent to transition expressed concerns about and common treatment of GID and therefore
he or she was discriminated against intention- Glenn using the women’s restrooms. In contrast discriminating against her based on her medi-
ally by his or her employer. The burden then to Etsitty v. Utah Transit Authority, in which a cal condition. The court did not challenge
shifts to the defendant to prove that the actions transgendered bus driver did not always have Glenn’s assertion that the Equal Protection
taken against the plaintiff, though perhaps in- access to private restrooms on her bus route, the Clause protects those with a medical condition
tentional, were taken for a legitimate reason. If OLC office does have four private, single occu- from being discriminated against based on that
the defendant meets the correct level of scru- pancy restrooms which make it likely that condition. Rather the court’s decision regard-
tiny in establishing that the apparent discrimi- Glenn could easily avoid using the women’s fa- ing her motion for summary judgment on this
natory action was taken for a legitimate reason, cilities while at work. 502 F.3d 1215, 1223 claim focuses entirely on whether Brumby sat-
the plaintiff is then required to establish that (10th Cir. 2007). isfied the level of scrutiny required to establish
the reason given by the defendant was merely that his firing of Glenn because of her medical
pretext and that discrimination was the central Also, in order for the action to be accepted as condition was based on a government interest.
motivation behind the action. being motivated by a valid government interest
in a heightened scrutiny case, the interest can- The level of scrutiny applied to a medical
Here, the court held that Glenn established a not first be expressed after the alleged discrimi- condition discrimination claim is the rational
prima facie case of discrimination by showing natory action has taken place. The government basis test. Less stringent than intermediate
that Brumby fired her for no reason other than objective must be the motivation behind the ac- scrutiny, rational basis requires only that the
her intent to transition sexes. Brumby’s state- tion, not the excuse given after the fact. Brumby defendant could have been acting to protect a
ment to Alexander that Glenn was not being ter- did not mention this concern to Glenn prior to government interest and that this possible mo-
minated due to poor work performance but be- her termination, nor did he express any such tivation appears reasonable. In contrast to the
cause she is transgendered was found by the concern to other OLC employees. standard applied to sex discrimination, the rea-
court to be sufficient to meet the first step of son for the action does not have to be based on
McDonnell Douglas. The court then turned its In his motion for summary judgment, an actual occurrence. Rather it is enough that
attention to whether Brumby sufficiently estab- Brumby also briefly asserted two other reasons the occurrence sought to be avoided could rea-
lished that his termination of Glenn was to pro- for his termination of Glenn. He argued that he sonably occur.
tect a legitimate government interest. In evalu- was concerned that if Glenn was allowed to
present herself as a woman in the workplace, it

108 Summer 2010 Lesbian/Gay Law Notes

While Glenn never used the women’s prison policy against initiating such therapy af- incoming freshmen a single book that they
restrooms while at work and no OLC employee ter incarceration. Shortly after, Adams at- would all read. The committee members agreed
expressed concern over her using these facili- tempted to hang herself in her cell. A Bureau that it was acceptable, maybe even advisable,
ties, the possibility that Glenn could use the psychologist evaluated Adams and warned that to recommend a book that might be seen as con-
women’s restrooms in the future does exist, Adams was at risk for self-mutilation. After Ad- troversial, even polarizing. Savage agreed with
even though there are private restrooms avail- ams attempted to castrate herself, another that idea, and recommend a few books, one of
able. Rational basis scrutiny does not require evaluation stated that Adams’s risk of self- which was The Marketing of Evil: How Radi-
that Brumby prove that Glenn will or ever did mutilation would continue because of her GID. cals, Elitists, and Pseudo-Experts Sell Us Cor-
use the women’s restrooms. The mere possibil- Adams repeatedly requested hormone therapy ruption Disguised as Freedom, by David Kupe-
ity that it could happen in the future means that but was denied treatment under the policy lian, which describes homosexuality as
the situation that Brumby claims he was trying noted above. aberrant human behavior that has become ac-
to avoid could reasonably arise. The court de- cepted because it is “politically correct.” Sav-
termined that it is a relational concern that al- Adams filed this action in January 2009. age later said that he was not serious in suggest-
lowing a person with male genitalia to use a Three weeks following, Adams was finally suc- ing this book; rather, he was making a sarcastic
women’s restroom could result in lawsuits cessful in severing her penis. Despite these two point about confronting orthodoxy, “Like stu-
against the OLC for invasion of privacy or sex- events, the Bureau still denied hormone treat- dents and young profs did in the 60’s, man!”
ual harassment. The attempt by Brumby to ment for Adams’s GID. On August 14, 2009,
avoid possible legal action against the govern- Adams filed an emergency motion seeking a Savage’s suggestion did not go over well with
ment was found by the court to represent a le- psychological evaluation by an outside expert. other members of the committee, who did not
gitimate government interest, making Glenn’s Finally, that same day, the Bureau initiated hor- get the sarcasm. One of them cited the book’s
termination on the basis of medical condition a mone treatment for Adams, later arguing that blatant homophobia and accused Savage of en-
non-discriminatory action. this action made Adams’s constitutional claims dorsing “ homophobic tripe.” Savage defended
that the denial of hormone therapy violated her the book and attacked his fellow committee
Although the court granted Brumby’s motion right to be free of cruel or unusual punishment members. An e-mail war ensued, and many
for summary judgment on Glenn’s medical con- (8th Amendment) moot.. members of the college community became
dition discrimination claim, the court held that aware of the controversy. Gay faculty members
because Glenn’s termination was also due in Judge Tauro denied the Bureau’s motion to were alarmed, and stated that they felt uneasy,
part to sex discrimination, Brumby violated dismiss. While a plaintiff in an action must and harassed, by the presence of Savage.
Glenn’s rights under the Equal Protection have standing through all stages of the contro-
Clause when he fired her for being transgen- versy, a defendant’s voluntary cessation of the Savage forwarded all the e-mails to a right-
dered. No mention was made in the decision as conduct causing the plaintiff’s injury will not wing group called Foundation for Individual
to whether Glenn was seeking to be reinstated automatically end the matter. Rather, the defen- Rights in Education (FIRE), and later con-
in her previous position at OLC, but a hearing dant carries the burden of showing that it is tacted a right-wing legal organization, the Alli-
was scheduled for July 13, 2010 to determine “absolutely clear that the allegedly wrongful ance Defense Fund (ADF), for legal advice. The
the appropriate remedy. Kelly Garner behavior could not reasonably be expected to Savage controversy was discussed at a faculty
recur.” The Bureau failed to argue this point at meeting, and the faculty dubbed Savage’s ac-
Federal Court Authorizes Continuation of 8th all and did not disavow the policy relied upon tions sexual harassment, but did not recom-
Amendment Litigation Over Denial of Hormone for four years to deny hormone therapy to Ad- mend that the HR department take any action.
Therapy to Transgender Inmate ams. Judge Tauro also determined that venue Various individual members of the faculty did
was proper because a substantial connection to file charges with HR. The ADF wrote a letter in-
On June 7, 2010, U.S. District Judge Joseph L. the forum existed, even though the Bureau had sisting that OSU stop violating Savage’s right to
Tauro, whose name we are all now familiar with transferred Adams through several federal pris- freedom of speech.
(see DOMA ruling, above), ruled that a trans- ons in different states after the events described
gender prisoner’s case against the Federal Bu- in the complaint that occurred while Adams HR instigated an investigation of the com-
reau of Prisons was not made moot by the Bu- was incarcerated in Massachusetts. Chris Be- plaints, with which Savage did not cooperate on
reau’s decision to finally provide the plaintiff necke the advice of ADF. Savage filed his own com-
with hormone therapy. Adams v. Federal Bureau plaint, accusing faculty members of filing false
of Prisons, No. 09-10272 (D. Mass. June 7, Federal Court Rejects Claim of Unconstitutional charges, and demanding that they be prose-
2010). As the Bureau could not prove that the Constructive Discharge by University Librarian cuted. He also set up a library display on aca-
deprivation of hormone treatment was not likely Who Had Promoted Homophobic Book demic freedom.
to recur, the plaintiff’s Eighth Amendment
claim for in humane treatment could proceed. Ohio State University officials were sued for is- An HR consultant employed by OSU found
sues surrounding their refusal to rehire a refer- that neither Savage nor any of his accusers were
Plaintiff Vanessa Adams entered federal ence librarian who alleged that he was “con- guilty of any of the charges against them, but
prison in 1999, where she was classified as a structively discharged”, in violation of the First the faculty members were not satisfied by the
male despite her self-identification as a female. Amendment, for promoting anti-gay literature. decision, and continued their campaign against
In February of 2005, Adams was formally diag- U.S. District Judge William O. Bertelsman Savage.
nosed with Gender Identity Disorder (GID), a granted the officials’ summary judgment mo-
diagnosis calling for hormone therapy as an tion and dismissed the case. Savage v. Gee, Savage took two leaves of absence, saying
element of treatment. Judge Tauro noted that 2010 WL 2301174 (S.D. Ohio, June 7, 2010). that he intended to return. He filed a lawsuit
those diagnosed with GID who are refused against OSU officials in April 2007, which the
treatment “are at risk of serious harm including Scott Savage, a member of a conservative OSU officials moved to dismiss. The type of ar-
depression, anxiety, self-mutilation and sui- Christian denomination, was head of reference guments that OSU made in court convinced
cide.” and library instruction at Ohio State University Savage that the university was not welcoming
in Mansfield, OH, from August 2004 to June his return, thus, Savage resigned on June 27,
Adams requested hormone therapy shortly 2007, when he resigned. Savage had served on 2007.
after her diagnosis, but was denied under a a committee that was charged with assigning all
Savage’s lawsuit against the OSU officials in
state court sought a determination whether
OSU officials were immune from damages un-

Lesbian/Gay Law Notes Summer 2010 109

der an Ohio law, Ohio Rev. Code sec. 9.86, not “as a citizen,” but rather as a librarian at a ineligible to claim damages in any subsequent
which only allows damages against state em- state university’s library. He intended to foment action, doomed the plaintiff’s cause. Savage
ployees if they act outside the scope of their em- dialog within a school-sanctioned committee. was in no position to make the case that he, and
ployment, or maliciously or recklessly. If the in- “[W]hen public employees make statements his issue-oriented attorneys, wanted to make.
dividual defendants were immune, then Savage pursuant to their official duties, the employees Alan J. Jacobs
sought damages against OSU and the State of are not speaking as citizens for First Amend-
Ohio. After various motions and discovery, Sav- ment purposes, and the Constitution does not Maine Supreme Judicial Court Orders New
age dismissed his state action on July 29, 2008. insulate their communications from employer Hearing on Transgender Name Change
Meanwhile, Savage had, on March 10, initiated discipline.” Garcetti v. Ceballos, 547 U.S. at Application
a federal lawsuit based on constitutional 421.
claims. On June 24, the Supreme Judicial Court of
The district court noted that some federal Maine, ruling on the appeal in In re A.M.B.,
Claim for Damages. The OSU officials courts have found an academic freedom excep- 2010 ME 54, 2010 WL 2521726, vacated and
moved for summary judgment of the federal tion to Garcetti v. Ceballos, based on Justice remanded to the Cumberland County Probate
lawsuit based on an Ohio precedent. The Ohio Souter’s dissenting opinion, and that decisions Court a petition by a transgender man for a
Supreme Court had held that “a plaintiff who in the Southern District of Ohio have found name change. Probate Judge Joseph R. Mazzi-
files an action in the Court of Claims of Ohio is such an exception. See, e.g., Kerr v. Hurd, 2010 otti had denied the name change petition with-
deemed to have waived any state or federal WL 890638 (S.D. Ohio 2010). However, the ex- out a written opinion or any communication of
claim for damages against state officials arising ception only applies to scholarship or teaching, reasons, other than “judicial discretion.” Zack
out of the same acts or omissions . . . in any sub- and Savage’s book recommendation was nei- M. Paakkonen and Alice A. Neal of West End
sequent action in federal court.” Leaman v. ther. Thus, Savage’s actions are not protected Legal, LLC, in Portland, Maine, represent
Ohio Dep’t of Mental Retardation & Dev. Dis- by the First Amendment. A.M.B. Patricia A. Peard, also of Portland, par-
abilities, 825 F.2d 946, 954 (6th Cir.1987) (en ticipated as amicus curiae on behalf of Gay &
banc). The Leaman holding interprets a state The court went on to state that Savage was not Lesbian Advocates and Defenders.
statute, Ohio Rev. Code sec. 2743.02(A)(1), constructively discharged, although it did not
which calls for a “complete waiver” upon filing need to reach this conclusion because, even if it The opinion for the court by Justice Ellen
in the Court of Claims. were true, Savage’s acts were not protected. Gorman reveals virtually none of the facts,
Nevertheless, the court opined that Savage briefly relating that A.M.B. had petitioned for a
Based on Leaman, the court granted the OSU could not show that his working conditions name change, stating in the petition this his
officials’ motion for summary judgment as to were “so intolerable that a reasonable person in reason for seeking a name change was that “I no
any claims for monetary damages by Savage, his position would have felt compelled to re- longer wish to have my current name,” had
following a Sixth Circuit precedent, Thomson v. sign,” and his employer never suggested firing given the notice required by statute, and ap-
Harmony, 65 F.3d 1314 (6th Cir.1995), which Savage, nor took any action to force him out of peared for hearing. When A.M.B. received
held Leaman controlling for claims against his job. When he took a leave from his job, Sav- word that his petition had been denied, he filed
state officials raised in federal court. age intended to return, implying that Savage an appeal, asserting that the Probate Court had
felt he could and would return, belying Sav- committed an abuse of discretion and that
Claim for Declaratory and Injunctive Relief. age’s claim of constructive discharge. Maine’s law against discrimination, which de-
The federal court then considered Savage’s fines the ban on sexual orientation discrimina-
non-monetary claims for injunctive and de- OSU’s Policies. As to OSU’s harassment and tion to include protection against discrimina-
claratory relief. Specifically, Savage asked for discrimination policies, the district court tion on account of gender identity, evinced a
an order finding that he had been construc- treated Savage’s lawsuit as a court would treat public policy that would be violated by denying
tively discharged in retaliation for exercising any First Amendment lawsuit by one was not a name change whose purpose was to provide a
his First Amendment rights, and requiring OSU yet affected by an overly broad policy that legal name consistent with the petitioner’s gen-
to reinstate him to a position at a different cam- might, in the future, “chill” free speech. Under der identity and expression, raising constitu-
pus. Further, Savage asked for a declaration that Laird v. Tatum, 408 U.S. 1 (1972), a litigant al- tional issues.
the OSU harassment and discrimination poli- leging chill must establish that a concrete harm
cies are unconstitutionally vague and overly occurred or is imminent. Merely alleging a sub- The SJC found it unnecessary to address the
broad. The district court rejected both claims. jective “chill” is not an adequate substitute for later point, instead stating: “Because we can-
a threat of specific future harm. Since Savage not determine the basis for the Probate Court’s
The First Amendment issue was decided by was no longer employed by OSU, he was no denial, we vacate the judgment and remand for
asking whether Savage promoted The Market- longer subject to any OSU policy, and thus further proceedings.” Justice Gorman ex-
ing of Evil as a citizen, rather than as an em- could not allege future harm. He lacked stand- plained that name changes can be denied if the
ployee, and whether his actions were on a mat- ing to challenge OSU policies. And he had not petitioner is “seeking the name change for pur-
ter of public concern. If he acted as a citizen on even been disciplined under the policy, so there poses of defrauding another person or entity or
a matter of public concern, he is protected from was no past action of the university that he for purposes otherwise contrary to the public
retaliation by the First Amendment. If he acted could challenge. interest.” Gorman noted that A.M.B.’s petition
as an employee, then he generally is subject to recited that “he had no children, no pending
administrative sanctions. However, he may be This was more a case about standing than bankruptcy or other insolvency proceeding,
protected by the academic freedom exception anything dealing with issues, although the and was not attempting to avoid any legal obli-
to this rule. Garcetti v. Ceballos, 547 U.S. 410 plaintiff raised some serious issues, specifi- gation.” All procedural requirements had been
(2006) (Souter, J., dissenting). On a related is- cally about whether a state employee could pro- met.
sue, the district court needed to determine mote, under the guise of freedom of speech and
whether Savage, who had resigned, had in fact academic freedom, literature that demeaned a In the brief filed by A.M.B.’s counsel with
been constructively discharged. segment of the academic community. However, the SJC, they relate that A.M.B. was classified
Savage’s deciding to quit his job rather than female when born in Maine, had lived for some
First the court determined that the issues litigate while he was still employed, and his at- time in Florida but was recently living back in
raised by Savage’s championing of The Market- torney’s decision to bring an action for damages Maine, and had identified as a man and used
ing of Evil were clearly matters of public con- in the Court of Claims which made the plaintiff
cern. However, his promotion of the issues was

110 Summer 2010 Lesbian/Gay Law Notes

male gender pronouns to refer to himself. family financially, Wendy stayed home full time a person who is either the biological or adoptive
A.M.B. was also receiving counseling and had with Olivia and Sofia until 2008, when Wendy parent of a child. Wis. Stat. sec. 48.02(13). Per-
been diagnosed as transgender. Because he had ended her relationship with Liz. haps of more importance to the court than the
been given a distinctively female name at birth, statutory definition, is that this is also the defi-
he encountered difficulties due to his legal pa- After the separation, Wendy filed a petition nition of parent that is implied in Barstad.
pers being inconsistent with his gender identity for guardianship. While at first Liz did not raise Broadening the definition of parent to include
and expression, and sought a name change to a any objections to the petition, after an incident someone who is not the adoptive or biological
distinctively male name in order to avoid hav- occurred while the children were under Wen- parent would require a reexamining and alter-
ing to disclose his transgender identity when- dy’s care, Liz challenged the petition. The court ing of Barstad, which the intermediate appel-
ever there is need to present a legal document. does not mention any details of the incident that late court “cannot do.” Wendy does not fit this
The brief noted that at the hearing the judge did caused Liz to change her position. narrow definition of what it is to be a parent, and
not inquire into any issues of fraud, instead ini- is therefore classified by the court as a third
tiating questioning about A.M.B.’s transgender The Dane County Circuit dismissed Wendy’s party to the children.
status and treatment. petition on summary judgment, finding that she
did not meet the requirements for granting a However, Wendy also argued that the defini-
The court observed, “The main purpose of third party guardianship of children against the tion of a parent is irrelevant. Citing an agree-
the statute. . . is to provide petitioners with the objection of the parent. Established in Barstad ment she and Liz made to serve as “equal par-
certainty of a judicially-sanctioned name v. Frazier, the current standard in Wisconsin for ent[s],” Wendy asserted that Liz should be
change, as long as the petition is not submitted an unrelated person to gain guardianship of a equitably estopped from stating that Wendy is
with fraudulent intent and the change of name child is fairly high if the parent objects to the not the children’s parent. Wendy interpreted
does not interfere with the rights of others.” petition. 118 Wis.2d 549 (May 30, 1984). In the agreement to be “equal parent[s]” as assur-
There was no transcript of the brief hearing be- Barstad, the petitioner sought custody of her ance that Liz would not attempt to assert her
fore Judge Mazziotti. A.M.B. had made notes of eight-year-old grandson over the objections of rights as legal parent against Wendy and is one
his brief colloquy with the judge, which were her daughter, the child’s mother. The child had of the primary reasons why Wendy agreed to al-
later typed up and made an appendix to the rec- spent the majority of his life with his grand- low Liz to adopt the children. The court, how-
ord. Justice Gorman observed that there was mother and the circuit court found that it would ever, interpreted the agreement as a promise by
nothing in the record to show that the court had be in his best interest to remain in her custody. Liz to allow Wendy continuing access to the
ordered any kind of background check, “the The Wisconsin Supreme Court reversed, hold- children. Following this interpretation, Liz has
judgment contains neither findings of fact nor ing that removing a child from the custody of a not violated the agreement as no evidence has
conclusions of law, and the court did not pro- parent if removal was found to be in the best in- been entered that Liz made any attempt to deny
vide its basis for denying A.M.B.’s petition.” As terests of the child was not a stringent enough Wendy access to the children. In part, the
a result, the SJC was “unable to determine a test to protect a parent’s legal rights against a court’s interpretation is based on the concern
proper basis for denying A.M.B.’s petition.” third party under the Due Process Clause. The that if Wendy’s claim for equitable estoppel was
Barstad court held that a person’s parental applied, Liz would be precluded from asserting
Thus, the judgment was vacated and re- rights could not be denied unless the parent her parental rights against anyone, not only
manded. “If, on remand, the court denies the was found to be “either unfit or unable to care Wendy, who may try to infringe upon those
petition, it should include findings explaining for the children or there are compelling reasons rights.
how the petition was fraudulent or otherwise for awarding custody to a third party.”
contrary to the public interest,” wrote Gorman. The court also points to the “‘co-parenting’
“In the future, when the Probate Court denies a On appeal, Wendy argued that the Barstad arrangement” both women agreed to after their
person’s petition for a name change, the basis standard should not be applied to her case be- separation. As part of the arrangement, the
for the denial and adequate findings of fact to cause she is not a third party to the children, but children spend equal time with both Wendy
support its decision should be included in order their parent. Wisconsin law states that courts and Liz. Wendy admitted that Liz had taken no
to permit effective appellate review.” A.S.L. should name both parents of a child as guardi- action to keep the children from her.
ans unless there are circumstances that indi-
Wisconsin Appeals Court Affirms Denial of Child cate it would be in the best interest of the child In support of her equitable estoppel claim,
Guardianship Petition by Lesbian Co-Parent Over that one or both parents not be given guardian- Wendy cited Randy A.J. v. Norma I.J., 270
Former Partner’s Objections ship. Wis. Stat. sec. 54.15(5). Though seeming Wis.2d 384 (April 7, 2004), in which a wife led
to contradict Barstad, this best interests of the her husband to believe that he was the biologi-
The Wisconsin Court of Appeals has affirmed child test is viewed by the courts as applicable cal father of their child, although she had rea-
the dismissal of a woman’s petition for guardi- when there is no third party attempting to assert sons to suspect that this was not true. When he
anship of two children she considers to be her parental rights over that of the parent. filed for divorce, she asserted that he was not
daughters. In re O.G.M-K, 2010 WL 2519625 the biological father. The court held that equita-
(June 24, 2010). After being together in a com- The statute, however, does not define what it ble estoppel was appropriately applied to pre-
mitted relationship for seven years, Wendy M. means to be a parent. Wendy argued that the vent the wife and the biological father of the
and Helen (Liz) E. K. adopted Olivia and Sofia. word ‘parent’ should be understood in terms of child from asserting the biological father’s pa-
Both children are from Guatemala. Wisconsin its plain, ordinary meaning. To support this ar- rental rights over those of the petitioner.
law bars non-married couples from jointly gument, she cites an entry of The American
adopting, and as same-sex marriages are nei- Heritage Dictionary of the English Language, In Wendy’s claim, the Court of Appeals held
ther legalized nor recognized in Wisconsin, which defines a ‘parent’ as someone who “be- that the decision in Randy A.J. was based on
Wendy and Liz could not adopt the children gets, gives birth to, or nurtures or raises a child; “unique facts”, and estoppel was employed in
jointly. Wis. Stat. sec. 48.82; Wis. Stat. sec. a father or a mother.” Focusing on the concept of that case as a means for the court to defend the
765.001(2). The couple decided that Liz, an at- a parent as someone who “nurtures or raises a petitioner’s rights to a child he was led to be-
torney, should adopt the girls, which would al- child,” Wendy argued that within this defini- lieve was his biological child. In contrast, the
low for them to be placed on Liz’s employer’s tion, she is a parent. However, the Court of Ap- court here held that Wendy’s claim of equitable
health insurance plan. While Liz supported the peals states that if a term is defined in a related estoppel was being used as an offensive tool to
statute, then that is the definition that should be assert parental rights over those of Liz, not to
applied. The related statute defines a parent as protect Wendy’s parental rights. Such an asser-

Lesbian/Gay Law Notes Summer 2010 111

tion was viewed by the court as unnecessary as, West Virginia Supreme Court Affirms Denial of recently enacted a Caregiver’s Consent Act,
unlike the mother in Randy A.J., Liz has made Guardianship Appointment for Lesbian under which Petitioner could designate her
no attempts to sever Wendy’s parental relation- Co-Parent partner as having authority to give consent for
ship with the children. The court then turned to medical treatment of her sons. Furthermore, the
Wendy’s alternative argument that if she was There is no legal status for same-sex couples in court noted that the power of attorney submitted
found to be a third party, she met the require- West Virginia, and co-parent adoption is not an as an exhibit in the case designated Petitioner’s
ments of the Barstad test. Wendy did not accuse option in the state. Confronted with situations partner to make decisions and act on behalf of
Liz of being an unfit parent, but pointed to where the biological mother’s job made her un- Petitioner, but did not expressly name her sons,
“compelling reasons” for granting her petition available from time to time, she petitioned the making it understandable that health care pro-
for guardianship. Barstad lists as possible com- Family Court in Fayette County to appoint her viders had refused to acknowledge the part-
pelling reasons for granting guardianship to a same-sex partner as legal guardian of her two ner’s authority when presented with the docu-
third party over a parent’s objections: abandon- sons, ages 13 and 11. The children were born ment. The court “clarified” that “at common
ment, neglect, and “other similar extraordinary during her prior marriage. After the marriage law, a parent or legal guardian may transfer
circumstances that would drastically affect the ended, the father’s contact with the boys ceased medical, educational, and other legal
welfare of the child.” Prior to Wendy and Liz’s after he was charged with molesting the boys. decision-making authority for his or her child
separation, they shared parental responsibility Petitioner, her partner and the boys have re- or ward, to another adult through the execution
for the children and Wendy argued that by de- sided together since 1999, when the boys were of a power of attorney,” which is revocable. The
nying her access to the children, Olivia and very young, and Petitioner alleges that her part- court shared Judge Blake’s concern that a
Sofia would be deprived of a close relationship ner is their psychological parent. But the Su- guardianship might have legal consequences
with one of the people who raised them and preme Court of Appeals of West Virginia af- that could prove inconvenient to the parties in
served as their parent. firmed a ruling by the Fayette County Circuit the future. A.S.L.
Court denying the guardianship petition, even
The court does not consider how ending the though it was endorsed by the state’s child wel- Tennessee Appeals Court Rejects Paramour
parental relationship between Wendy and the fare agency. In re Richard P., 2010 WL Restriction Against Lesbian Mom
children would affect Olivia and Sofia in the fu- 2723185 (W.Va., July 9, 2010).
ture, because such a consideration is beyond In a case that has been to the court of appeals
the scope of the Barstad standard. The test is In the petition, biological mother alleged the twice because a stubborn trial judge seems ei-
not concerned with severing the relationship facts concerning father’s abuse of the children ther to be deliberately obtuse or just resolutely
between a child and a third party, but with what in furtherance of jurisdiction under the guardi- opposed to allowing custodial parents to have
harm the child could come to by being under anship statute, which caused the Family Court unrelated adults living with them, the Court of
the guardianship of their biological or adoptive to transfer the case to Circuit Court. The Circuit Appeals of Tennessee ruled that such a restric-
parent. The actions of the parent, or inaction in Court judge, Paul M. Blake, Jr., questioned the tion was not supported by any evidence in the
the case of neglect, are the primary concern of necessity to appoint a guardian, in light of the case of Barker v. Chandler, 2010 WL 2593810
the Barstad test. The main objective is to pre- fact that biological mother “was alive, healthy, (Tenn.Ct.App., Jackson, June 29, 2010).
serve a parent’s parental rights as long as the and capable of caring for the children.”
parent’s actions do not pose a threat to the The issue arose out of the 1998 divorce of Jo-
child’s welfare. Wendy made no accusations Petitioner filed a post-hearing brief detailing seph Barker and Angel Chandler. At that time,
that Liz had harmed or neglected the children several instances where her active young sons they had two young children. Angel filed for di-
in any way. needed medical attention while she was un- vorce when she found out Joseph was having an
available due to her job as an ambulance driver, affair with another woman. After the divorce,
Besides a strict adherence to Barstad, the and health care providers had refused to accept Joseph married the other woman and eventu-
court does not consider the effects of separation authorization from her partner, even though she ally Angel began a lesbian relationship.
on the children, because separation is not seen had a power of attorney. Despite this evidence,
as a significant factor in this situation. While Judge Blake denied the petition, claiming that Custody of the children is shared, with the
Wendy does not have legal parental rights to the it was “not necessary at this time” to appoint a birth parents having various designations as
children, the court again stresses the fact that guardian, and that Petitioner could provide for primary residential parent, the children going
Liz has not attempted to keep the children from future emergencies by including a provision in back and forth at various times and being sepa-
Wendy. Wendy’s personal relationship with her will to designate her partner as guardian in rated at various times. The current dispute
Olivia and Sofia is seen by the court as not be- the event of her death. reaches the court of appeals because of the in-
ing in jeopardy. No consideration is given, how- sistence by Gibson County Chancellor George
ever, to the possibility that in the future Liz The Supreme Court, in an opinion by Justice Ellis on including and enforcing a “paramour
could choose to assert her parental rights and Margaret Workman, treated this as an “abuse of provision” in the court’s order governing cus-
renege on the “‘co-parenting’ arrangement.” discretion” case, finding that the guardianship tody and visitation, as part of the latest round of
The opinion also briefly mentions Wendy’s as- statute gave the trial court discretion to decide revisions in the parenting plan. This provision
sertion that denial of her petition for guardian- whether a guardian should be appointed in a says that when a child is in residence, an un-
ship violates the children’s constitutional rights particular case. (The guardianship statute is married partner of the parent may not be there
to Equal Protection and Due Process under the rather vaguely worded, and does not expressly overnight. This, of course, puts quite a strain on
Fourteenth Amendment. The court does not make it a prerequisite to a guardianship ap- a lesbian mother in Tennessee, a state that does
discuss these claims in detail, stating that the pointment that the court find that a child’s legal not allow or recognize same-sex marriages.
arguments were not adequately developed in parent is incapable of caring for them or other-
Wendy’s brief and that Wendy failed to alert the wise unfit.) And, the Supreme Court found, Chancellor Ellis’s attitude has been that
attorney general as to her constitutional chal- there was no abuse of discretion here because, paramour provisions are the norm in Tennessee
lenge of a statute as required by Wisconsin law. as the trial court had concluded, the Petitioner custody and visitation orders, and that it has
Wid. Stat. sec. 806.04(11). For these reasons, could accomplish her most immediate aims nothing to do with sexual orientation, as the or-
the court declined to address these claims. through other steps. der is phrased in gender neutral terms and
Kelly Garner would apply to any non-marital adult cohabita-
In addition to the testamentary appointment tion of the parent, regardless of sex. He insisted
proposal, the court noted that West Virginia had

112 Summer 2010 Lesbian/Gay Law Notes

that he was not discriminating based on sexual surrogates tend to develop normal social rela- Ray-Chaudhuri to move out of the apartment,
orientation or gender. tionships, and are no more likely to display but she refused to do so. Phelps then filed a
same sex sexual orientation than children summary proceeding, seeking to recover pos-
On the first appeal, the court made clear that reaised in more traditional two parent homes.” session of the apartment, in which she charac-
Tennessee law does not require inclusion of a In the absence of any evidence introduced by terized Ray-Chaudhuri as a licensee whose li-
paramour provision, but that one could be im- the father to the contrary — indeed, he had ex- cense to occupy the premises had been
posed if it was necessary to protect the best in- pressed indifference about whether the chil- revoked. Ray-Chaudhuri had countered with
terests of the children. But the Chancellor did dren were exposed to M.C. — the court found the allegation that she was a “family member”
not, evidently, get the message, as he stated in that it was wrong for Chancellor Ellis to insist who could not be removed through this sum-
his second order: “Court finds that though on the paramour provision. mary proceeding.
[Mother] found the paramour clause to be in-
convenient and had no concerns if her former Rather than remand for further consideration “The Real Property Actions and Proceedings
husband should have a paramour overnight by the trial court, the court of appeals reversed Law (RPAPL) provides that a petitioner may re-
with his children present, the Court finds that outright the trial court’s “finding” that a para- cover possession from someone who is ‘a licen-
the admonition in the other section of the per- mour provision was in the best interest of the see of the person entitled to possession of the
manent parenting plan is in the best interest of children, and ordered that costs of the appeal property at the time of the license, and. . . the li-
the children. A paramour overnight, abuse of be awarded to Angel. A.S.L. cense has been revoked," (RPAPL 7137). A li-
alcohol and abuse of drugs are clearly common censee is ‘one who enters upon or occupies
sense understanding that children can be ad- Finding Former Lesbian Partners Were Family lands by permission, express or implied of the
versely affected by such exposure, as found Members, Brooklyn Judge Dismisses Petition to owner, or under a personal, revocable, non-
from legions of cases in Tennessee.” Thus, Ellis Reclaim Apartment After Split-Up assignable privilege from the owner, without
was continuing to base his ruling, contrary to possessing any interest in the property, and who
the instruction from the court of appeals in its New York City Civil Court Judge Laurie L. Lau becomes a trespasser upon revocation of the
first opinion in this case, on general principles ruled on June 2 that the owner of a four- permission or privilege (Rosenstiel v. Rosen-
rather than specific evidence. apartment building in Brooklyn could not treat stiel, 20 AD2d 71, 76 1st Dept 1963). The
her former same-sex partner as a mere “licen- court must therefore determine the nature of the
The court of appeals found that the appropri- see” who could be forced to vacate the apart- relationship between the parties at the time
ate standard to review this ruling is “abuse of ment in which they had lived together at the Ray-Chaudhuri initially took occupancy of the
discretion,” and that Chancellor Ellis had owner’s option, since they were “family” mem- Apartment as that would be the time any li-
abused his discretion in placing the paramour bers under the precedent of the 1989 New York cense to occupy the Apartment was created,”
restriction, because there was no evidence that Court of Appeals decision, Braschi v. Stahl As- wrote Judge Lau.
it was in the best interest of the children, now sociates. Phelps v. Ray-Chaudhuri, No.
teenagers. 54177/10 (N.Y.City Civ. Ct., Kings Co., June 2, “While their relationship has obviously de-
2010) (NYLJ, 7/8/2010, p. 29). teriorated into one of animosity and hostility,"
“The record is devoid of any evidence what- she continued, “the evidence establishes the
soever to support the finding that a paramour According to the detailed recital of the testi- parties had intended to form a lasting familial
provision is in the best interests of the chil- mony in Judge Lau’s opinion, Danica Phelps unit. It has been held that ‘lifetime partners
dren,” wrote Judge J. Steven Stafford for the and Debi Ray-Chaudhuri became partners in whose relationship is long term and character-
three-judge panel. “In fact, the record contains 2002 and began living together in 2004. In ized by an emotional and financial commitment
evidence demonstrating that a paramour provi- 2006, Phelps sold some other property and and interdependence,’ (Braschi v. Stahl As-
sion is contrary to the best interests of the chil- bought the building on Franklin Avenue in socs. Co., 74 NY2d 201, 211 1989) satisfy the
dren. Mother testified that she has not been Brooklyn where they occupied a ground floor definition of ‘family’ for purposes of the Rent
able to visit with the children at her home since apartment together for about three years. Stabilization Code. The evidence here supports
July 2009 due to the paramour provision cur- the same conclusion. That the parties entered
rently in effect. Mother testified that under the Although they had not registered as New into an agreement manifesting their intention to
previous custody arrangement, the children York City domestic partners or formed a civil both act equally as parents to a child means that
would stay overnight while she and M.C. were union or same-sex marriage elsewhere, Judge each undertook the responsibilities and obliga-
living together in Tennessee and that the chil- Lau found that consistent with the Braschi rul- tions of parenting a single child. While the ab-
dren never expressed any concerns about the ing they should be considered family members sence of a formal adoption might have signifi-
situation.” based on numerous indicia, including most im- cant legal impact in claims involving third
portantly the documentary evidence supporting parties, the issue here is how the parties re-
The expert appointed by the Chancellor to Ray-Chaudhuri’s testimony that they planned garded each other. Under the circumstances
investigate the situation and report to the court to have and raise children together. Her cousin here, the court finds that respondent was not a
had concluded that the children “view their re- donated sperm pursuant to a written agreement licensee of petitioner, and that this proceeding
lationship with M.C. as typical of adolescents so that Phelps could bear a child related to both cannot be maintained.”
with their parent/parent surrogate.” The export, of them, and their son was originally given a
Dr. Pickering, found that “both children inter- name that included both mother’s surnames. In The respondent is represented by Virginia
acted well with M.C., and that ‘interactted with addition, there was evidence of merged fi- Goggin of NY Legal Assistance Group. A.S.L.
them in a positive and supportive manner.’” In- nances during their cohabitation, and of in-
deed, Pickering had reported that M.C. was the volvement of Ray-Chaudhuri’s family at vari- Federal Civil Litigation Notes
“better surrogate parent” than Joseph’s wife, ous times. Ray-Chaudhuri also performed
their stepmother. It didn’t hurt that M.C. is a so- various chores around the building and shared 3rd Circuit — Rejecting a defense motion to
cial worker, and Dr. Pickering found that her parenting duties with Phelps. compel arbitration, a panel for the U.S. Court of
training in that area was a “positive factor.” Appeals for the 3rd Circuit ruled in Nino v. The
Phelps testified that she moved out with the Jewelry Exchange, Inc., 2010 WL 2380787
To gild the lilly, the Dr. Pickering’s report child after the relationship broke down and (June 15, 2010), that the company’s grievance
noted positive studies on gay parenting, as fol- turned violent, and she and the child had been arbitration procedure was unconscionable, and
lows: “Further, research indicates that children living with relatives in New Jersey. She asked
raised in homes with same sex parents/parent

Lesbian/Gay Law Notes Summer 2010 113

that the company had actually waived its right tured a color photograph of Juror A and stated on the personal and private lives of homosexu-
to demand arbitration by litigating for 15 the following: ‘Gay anti-racist [Juror A] was a als,” which Judge Phillips characterized as “a
months (including substantial participation in juror who played a key role in convicting Matt much harder one for the government to prove.”
discovery) before filing its motion. The case in- Hale. Born [date], [he/she] lives at [address] In a previous ruling, Phillips had rejected the
volves a gay employee who claims to have been with [his/her] gay black lover and [his/her] cat argument that Log Cabin Republicans did not
constructively discharged on the basis of his [name]. [His/her] phone number is [phone have standing to challenge the policy, finding
national origin and gender. According to the number], cell phone [phone number], and that it was acting on behalf of members who
court’s account of the complaint, plaintiff [his/her] office is [phone number].” The next were either in the military or had been sepa-
claims to have been falsely accused of “coming day, White posted a follow-up entry noting that rated under the policy. Phillips announced her
on” to a male co-worker, and the same co- the previous day’s posting had been blocked ruling without a written opinion, but indicated
worker had complained to management that and reposting the information. The per curiam that one would be subsequently issued. The
plaintiff “acted and talked like a female” when court found no First Amendment violation in opinion emerged a few weeks later, shortly be-
interacting with the co-worker. The company prosecuting White for making these postings. fore the trial began on July 13. At the start of the
supervisor “wrote up” both employees for being The court stated that First Amendment protec- trial, government attorneys indicated they
“disruptive.” After plaintiff decided to “come tion turned on White’s intent in posting the in- would not put in any evidence, urging the court
out” to his co-workers in order to put an end to formation. If it “was to request one of his read- to follow 9th Circuit precedents and defer to
all the gossip and speculation about him, he ers harm Juror A, then the crime of solicitation military judgment and the legislative history of
found that he was being treated worse than be- would be complete. No act needed to follow, the statute, while continuing to argue Log
fore, offensive comments mounting up to verbal and no harm needed to befall Juror A. If, on the Cabin’s standing, a point they had lost in the
and physical harassment. Then plaintiff was other hand, White’s intent was to make a politi- pre-trial motion skirmishing. Daniel Woods of
suspended, ostensibly for responding to his dis- cal point about sexual orientation or to facilitate the Los Angeles office of White & Case repre-
ciplinary write-up with a profane comment. opportunities for other people to make such sents Log Cabin Republicans in its challenge of
Feeling he could not tolerate the situation any views known to Juror A, then he would not be the policy. In his opening statement to the court,
longer, he never returned to work, instead filing guilty of solicitation because he did not have he indicated that he would put in evidence on
his discrimination claim in federal court. The the requisite intent required for the crime.” If the standing point as well as much factual and
district judge found that unconscionable as- the government’s evidence at trial is not suffi- expert testimony going to the irrationality of the
pects of the arbitration agreement could be sev- cient to sustain its burden on intent, the trial policy. Log Cabin Republicans is an organiza-
ered, and that the company had preserved its judge can grant judgment to the defendant on tion of LGBT rights supporters who identify
right to arbitrate by raising the arbitration First Amendment grounds. with the Republican Party. Nat’l Law Journal,
clause as one of its defenses in its answer to the June 28, 2010 & numerous press reports on
complaint. The 3rd Circuit disagreed, finding California — Final arguments were held be- July 13-14 concerning the beginning of the
unconscionability (both procedural and sub- fore U.S. District Judge Vaughn Walker in Perry trial.
stantive) that was too substantial for severance, v. Schwarzenegger on June 16 in San Frana-
and finding that the company’s litigation activi- cisco. The argument was focused on a lengthy Kentucky — U.S. District Judge John G.
ties over 15 months would constitute a waiver of list of questions that the judge had released and Heyburn II denied a motion by the defendants
its arbitration rights even if the court found the sent to the parties a week before the argument. to dismiss a sexual orientation discrimination
arbitration provision enforceable. The court The defenders of Proposition 8, represented by claim brought by a former employee of the state
studiously avoided making any comments go- Charles Cooper, insisted that a policy judgment government in Stroder v. Commonwealth of
ing to the substance of the complaint. There is that marriage should be limited to the kind of Kentucky Cabinet for Health and Human Serv-
federal case law suggesting that employees who couples (i.e., different-sex couples) who can ices, 2010 WL 2464913 (W.D.Ky., June 14,
encounter discrimination due to failure to com- theoretically conceive children was a rational 2010). Milton Stroder alleges that he was termi-
port with gender stereotypes may state a sex one, and that a rational basis was all that was nated from his position due to his sexual orien-
discrimination. One would expect that the com- necessary to reject the constitutional challenge. tation, and that there is no rational connection
pany will argue on the merits that the facts al- Ted Olson, representing the plaintiffs, argued between his termination or position and his sex-
leged by the plaintiff are not sufficient to invoke that a fundamental right was at stake, requiring ual orientation, and claims violations of the fed-
this doctrine. more in the way of justification. Press reports eral and state constitutions and an executive or-
indicated that Walker reacted skeptically to der of the governor. He seeks injunctive and
7th Circuit — A 7th Circuit panel ruled in Cooper’s argument. It was widely anticipated declaratory relief only. The defendants moved
U.S. v. White, 2010 WL 2557762 (June 28, that Judge Walker would issue his decision to dismiss relying on an affidavit from J.P.
2010), that the founder and content-provider of during the summer, and that whichever side lost Hamm, Executive Director of the department
a right-wing website did not enjoy First Amend- would appeal promptly to the 9th Circuit. for which Stroder had worked, claiming that
ment protection against prosecution for posting Stroder’s factual allegations are incorrect and
extensive identifying information about the California — On June 28, U.S. District state merely legal conclusions, that defendants
foreman of a jury in the trial of a white suprema- Judge Virginia Phillips (C.D.Calif., Riverside), enjoy qualified immunity under the 11th
cist who was charged with soliciting the murder denied a motion for summary judgment filed by Amendment, and that there is no private cause
of a federal judge. The per curiam 7th Circuit the government in Log Cabin Republicans v. of action under the state constitution and the
opinion reversed a trial judge, Lynn S. Adelman United States, No. CV04-8425 (VAP), a case executive order. Judge Heyburn pointed out
(N.D. Ill), who had dismissed the indictment of challenging the U.S. Defense Department’s that factual disputes are not resolved on a mo-
defendant William White on the ground that it “Don’t Ask, Don’t Tell” policy on service by tion to dismiss; at this stage, plaintiff’s factual
violated the First Amendment. Judges Posner, LGBT people. Rejecting the government’s ar- allegations are accepted for purposes of testing
Flaum and Williams made up the 7th Circuit gument that the case should be disposed of un- the viability of the complaint, and Stroder had
panel, which described the postings giving rise der the rational basis test, Phillips found that made the specific allegations necessary to state
to the prosecution: “The September 11 entry by 9th Circuit precedent, exemplified by Witt v. a discrimination claim. Furthermore, Judge
White was entitled ‘the Juror Who Convicted Dep’t of the Air Force, shifted the burden to the Heyburn rejected qualified immunity, stating:
Matt Hale.’ It identified Juror A by name, fea- government to show at trial that there is “an im- “It has been clearly established for some time
portant government interest at stake to intrude

114 Summer 2010 Lesbian/Gay Law Notes

that government agents may not discriminate the high bar of an intentional constitutional vio- being improperly stopped and arrested while
against an individual on the basis of his sexual lation. driving away from a gay bar. Roberts v. City of
orientation without some rational basis for do- Phoenix, 2010 WL 2620802 (Ariz. App., Div.
ing so,” citing Romer v. Evans, 517 U.S. 620 Bankruptcy — World Entertainment News 1, July 1, 2010). Police Officer Michael Rogers
(1996). “Without any discovery, if it is un- Network reported July 15 that a controversy has stopped Randy Roberts moments after Roberts
known exactly why Hamm terminated Plaintiff arisen about the database containing personal left “Charlie’s,” a popular Phoenix gay bar, in
and, if it was because of his sexual orientation, information about over one million gay teens March 2001. Rogers claimed Roberts was
whether there was a rational basis for that deci- that was an asset of XY Magazine and its asso- speeding. Roberts denies speeding and
sion. With those facts in dispute, the Court can- ciated website, now defunct. The owner went claimed Rogers was unnecessarily aggressive,
not determine Hamm’s entitlement to qualified into bankruptcy, and creditors have petitioned “pounded on the car windows with a flashlight,
immunity at this time and must deny themotion the bankruptcy court for access to this data, but and threatened to pull him out of the car win-
to dismiss.” As to the co-defendant govern- the Federal Trade Commission has expressed dow. Additional officers arrived on the scene in
ment’s motion to dismiss, immunity is irrele- concern about the privacy rights of the indi- response to Rogers’ request for backup and
vant because the complaint does not seek viduals whose information is in the database, Roberts was arrested for failure to comply with
monetary damages. Finally, Judge Heyburn put saying that there might be a violation of “fed- the lawful order of a police officer.” After
off the need to decide there is a cause of action eral law” were this to be treated as an ordinary charges against Roberts were dropped, he
on the state claims, since the federal claim is vi- asset in bankruptcy. Comments WENN: “The brought a 42 USC 1983 suit against Rogers and
able and gives the court jurisdiction, so discov- issue of selling databases is not new, but it is the the City, claiming selective enforcement, as-
ery can proceed and state claims can be deter- sensitivity of this particular database that is sault, failure to supervise, and malicious prose-
mined in a summary judgment motion or after catching the attention of lawmakers — as it cution. Roberts claimed there was a pattern of
trial. contains the details of tens of thousands of police harassment of gay men leaving Phoenix
young men, the majority of whom will be gay.” bars, and sought Rogers’ personnel records in
New York — Some sex-panicked male NYC discovery. After in camera review, the trial
police officers who claim to have been sub- Pennsylvania — A federal jury in Philadel- judge, Maricopa Superior Court Judge Janet E.
jected to unlawful sexual harassment when an phia decided on June 23 that the City of Phila- Barton, found the records irrelevant and re-
openly gay officer grabbed his crotch in front of delphia violated the First Amendment rights of fused to compel their disclosure, and after Rob-
them have succeeded in getting New York City the local chapter of the Boy Scouts of America erts’ principal case, granted judgment to the
to pay them big bucks in settlement of their im- when it moved to evict the Scouts from a city- defendants. Roberts’ attorney subsequently
plausible federal Title VII lawsuit, according to owned building because the chapter would not moved for relief from the judgment, based on
a July 13 report in the New York Daily News. repudiate the anti-gay membership and em- newly-discovered documents, including rec-
Sergeants Dominic Coppola and Sean Gal- ployment policies that its national body re- ords showing that there had been complaints
lagher will reportedly receive $300,000 under quires it to follow. Cradle of Liberty Council of against Rogers for making similar arrests in the
the settlement. Lt. Kieran Crowe, who retired Boy Scouts of America v. City of Philadelphia, past. The opinion for the Court of Appeals by
from the NYPD in 2008 after a departmental E.D.Pa. The jury answered yes to the question Judge Michael Brown does not specify how
trial found that he had simulated masturbation whether the City’s action imposed an unreason- Roberts’ attorney obtained the information, but
while wiggling his tongue at the two sergeants, able unconstitutional condition on the Scouts’ over the course of the next few years there was a
presented evidence at the departmental trial continued use of the building under its existing constant trickle of new information about mate-
that he was treated for jock itch for a decade, sweetheart lease. However, the jury ruled in fa- rials omitted by the City or redacted from rec-
and claimed that any rubbing was purely in re- vor of the City on the two other claims in the ords disclosed, despite the court’s order to turn
sponse to his medical problems. Crowe’s law- case, finding that the City had not engaged in over unredacted records. Judge Barton re-
yer, Rae Koshetz, told the News: “He paid noth- viewpoint discrimination and had not violated opened the case and finally became so frus-
ing, he did nothing, he admitted nothing. If the the Equal Protection clause because it had a ra- trated with the City’s failure to comply with dis-
city wants to pay these people, that’s their tional basis for its actions. Unless the verdict is covery requests that she defaulted the City,
choice.” set aside in post-trial motions, it is expected entered judgment for Roberts, and awarded
that District Judge Ronald L. Buckwalter will him $10,000 compensatory damages, $2500 to
New York — It is so dispiriting to read deci- convert his preliminary injunction against the reimburse his cost of defending the initial ar-
sion in prisoner pro se sexual orientation dis- City into a permanent injunction if the parties rest case, $268,450 in attorneys fees, and over
crimination cases, because the bar is set so don’t settle. After announcing the verdict, $17,000 in costs – about $280,000 in all. The
high to find any actionable claim and so much Judge Buckwalter urged them to settle, while Court of Appeals affirmed the default judgment
petty discrimination and harassment must go many of the jurors nodded their heads in agree- and the remedy, finding that the record sup-
unredressed, not least because pro se litigants ment. Law.com, June 24, 2010. A few days ported the finding that the City was acting in
may not have a firm grasp of the factual allega- later, after the Supreme Court issued its deci- bad faith in failing to comply with discovery re-
tions they need to make and support to avoid sion in Christian Legal Society v. Martinez (see quests, but rejecting Roberts’ renewed requests
suffering summary judgment. In Vega v. above), the City filed a motion to set aside the for Rule 11 sanctions against the City’s attor-
Lareau, 2010 WL 2682307 (N.D.N.Y., March verdict in light of the reasoning of that case, as neys, finding that the fault lay with the Police
16, 2010), U.S. Magistrate Judge Andrew T. well as inconsistencies in how the jury an- Department, not the attorneys. The City
Baxter recommended to District Judge Glenn T. swered the eleven questions put to them. claimed Roberts should not get attorneys fees
Suddaby that summary judgment be granted to Law.com, June 28. A.S.L. because he did not “prevail on the merits.” Re-
defendants on the claim by inmate Alex Vega jecting this argument, Judge Brown pointed out
that he had suffered discrimination due to be- State Civil Litigation Notes that the trial court awarded compensatory dam-
ing wrongly perceived as gay because of his ages. Brown also rejected the City’s proportion-
friendship with a known gay inmate. Vega’s de- Arizona — Stonewalling in discovery has back- ality argument against the fee award, quoting
tailed factual allegations, as summarized by fired for the City of Phoenix, as the Arizona with approval Judge Barton’s statement: “It is
Judge Baxter, suggest that he has suffered quite Court of Appeals upheld a default judgment ironic that the City contests the reasonableness
a bit of discrimination, but none of it, even against the City and a large attorney fee award
when viewed cumulatively, sufficient to meet in a suit brought by a man who was outraged at

Lesbian/Gay Law Notes Summer 2010 115

of the hours his attorneys spent on this matter. qualified to fill a vacancy for the general man- New York — The New York Court of Appeals
In essence, the City is contesting the reason- ager position at the jetport, but after some fe- has decided, 4-3, that employment discrimina-
ableness of hours that the City forced his attor- male employees who had been turned down for tion claims under the N.Y. Human Rights Law
neys to incur due to the unreasonableness of the an open supervisory job complained that there premised on decisions having been made at a
City’s conduct in this matter.” was favoritism to gay men in the company, the company’s offices in New York State and com-
owner decided not to fill this position with a gay municated to a non-resident from New York are
Maine — Maine Superior Court Justice Wil- man. Russell had applied for the position sev- not actionable if the decision involves only
liam S. Brodrick has denied a motion to dismiss eral times over the years as it became vacant, non-residents employed outside the state and
a sexual orientation discrimination complaint but was told by regional managers not to waste have no direct impact in the state. Reversing an
against a Denny’s Restaurant arising from a his time by applying. On one of those occasions, Appellate Division ruling in Hoffman v. Parade
restroom usage dispute with a transsexual cus- the company hired a general manager who was Publications, No. 132 (July 1, 2010), a majority
tomer of the restaurant. Freeman v. Realty Re- described by a regional executive as a “real of the court rejected the notion that the state’s
source Hospitality, LLC, d/b/a/ Denny’s of man,” his credentials for that description evi- anti-discrimination policies could have extra-
Auburn, CV-09-199 (Maine Super. Ct., May 27, dently being that he made disparaging com- territorial application if the discriminatory de-
2010). Plaintiff Brianna Freeman is described ments about gay people. Russell quit working cision itself was made in New York. This ruling
in the opinion as a male-to-female transgender there in 2007, discouraged by discriminatory is unfortunate for LGBT people who work out-
individual who is undergoing transition. Free- treatment, and filed his lawsuit. According to side New York for large companies that are
man dresses as a woman and grooms and pres- Russell’s attorney, he is working as general headquartered in New York. Fewer than half the
ents herself as such. In mid-summer 2007, she manager for a rival airline at the same jetport. states forbid sexual orientation discrimination,
discussed her transitioning process with a Den- and many of those who do forbid such discrimi-
ny’s manager and was given permission to use Michigan — The Michigan Court of Appeals nation provide less expansive remedies than
the women’s room, but when she was back in issued a brief order in Harmon v. Davis, Docket are available under the N.Y. Human Rights
the restaurant in late October, a different man- No. 297968, LC No. 10-101368 (July 8, 2010), Law.
ager on duty ordered her not to use the women’s reversing a trial court’s decision to hold an evi-
restroom because she was biologically male. In dentiary hearing on a same-sex co-parent cus- New York — In Levine v. Werboff, NYLJ, June
light of her appearance and gender expression, tody claim while holding in abeyance a deci- 7, 2010 (Sup.Ct., Westchester Co., May 21,
it was unacceptable to Freeman to use the men’s sion on whether the co-parent had standing to 2010), Justice Nicholas Colabella found that a
restroom, and she filed her claim alleging dis- seek custody after the break-up of her partner- married man who contracted herpes from his
crimination on the basis of sexual orientation, ship with the legal parent. The order signed by wife, after she had contracted it from having sex
sex and disability. Maine’s human rights statute Presiding Judge Karen M. Fort Hood held that with her doctor, could sue the doctor for negli-
defines sexual orientation to include gender the standing issue must be resolved against the gence and gross negligence, but not for fraud or
identity, and the Human Rights Commission’s plaintiff, as she “cannot meet the third party negligent misrepresentation or negligence per
interpretive rulings broadly construe the stat- standing requirements” under the Child Cus- se. Ruling on an apparent issue of first impres-
ute to prohibit discrimination based on trans- tody Act, and she “cannot be considered a ‘pa- sion in New York, Justice Colabella found per-
sexual status. Judge Brodrick found that the sex rent’ because she is neither a parent through suasive the Ohio Supreme Court’s decision in
and disability discrimination claims had to be nature (a natural or biological parent) nor Mussivand v. David, 45 Ohio St. 314, 544
dismissed, but that the sexual orientation claim through adoption, so the statute is not satisfied. N.E.2d 265, which stated: “If one negligently
was viable for trial. (Brodrick noted that some Nor, for that matter, can plaintiff gain standing exposes a married person to a sexually trans-
federal courts had expanded the reach of sex through the unrebutted presumption from the missible disease without informing that person
discrimination under Title VII to cover trans- birth of a child born during a legal marriage. . . of his exposure, it is reasonable to anticipate
sexual cases, but rejected adopting such an in- In other words, one becomes a parent under the that the disease may be transmitted to them ar-
terpretation for Maine’s law as unnecessary, Child Custody Act through procreation, or ried person’s spouse.” Wrote Justice Colabella,
since the legislature had amended the Human through adoption or the presumption (not re- “The extension here to a spouse is to a narrowly
Rights Law to forbid such discrimination di- butted) arising from a child born in a legal mar- defined class of persons, not a broader unde-
rectly through the sexual orientation provision. riage. Plaintiff admits that none of these situa- fined community at large. There is also nothing
Plaintiff is seeking only prospective relief, hav- tions apply. And, because it is well-settled that unfair about extending such a duty of care to a
ing dropped her claim for damages, and so the one who is not otherwise a legal parent cannot spouse of the infected person. The alleged tort-
court agreed that a bench trial will be held. gain standing through equitable principles, see feasor is in the best position in both instances to
Van Zahorik, 460 Mich. 320, 331-332; 597 prevent the transmission of a venereal disease.
Maine — The Portland Press Herald (July N.W.2d 15 (1999), the trial court erred in con- Further, the potential for harm to the married
15) reports that a jury in Cumberland County cluding that plaintiff could establish that she is person who becomes infected and the spouse of
Superior Court found that Edward Russell, a a ‘parent’ under the act based on an agreement the married person who thereafter becomes in-
resident of Buxton, was the victim of unlawful between two unmarried and unrelated indi- fected is the same.” One wonders whether a
sexual orientation discrimination by his former viduals. One cannot confer standing by agree- New York court would extend comity to a
employer, Express Jet Airlines, and has voted to ment.” The trial judge, Wayne County Circuit same-sex marriage contracted in another juris-
award damages of $500,000 for emotional dis- Judge Kathleen McCarthy, had decided to keep diction in the application of this principle? And
tress, $500,000 for punitive damages, and the standing issue in abeyance while proceed- would a court extend the duty of care to regis-
$47,000 for lost wages. The jury’s damage ing to a factual hearing, but the court of appeals tered partners under, for example, the NYC Do-
award is subject to damage caps that will be ap- held that this was improper, as standing is a mestic Partnership Ordinance?
plied by the judge. Russell’s attorney, Guy Lo- prerequisite to the court’s jurisdiction over the
ranger, speculated that the final award would be case. So, once again legal formalism triumphs New York — The ruling in Estate of Fallou
in the neighborhood of $547,000, plus attor- and Michigan courts signal that the best inter- Diba, 2010 WL 2696611 (Surrogate’s Ct.,
neys fees and costs. Attorneys for the employer ests of children being raised by same-sex cou- Bronx Co., July 8, 2010), presents an interest-
have indicated that they intend to appeal the ples are no concern of the courts when their ing example of recognition of a foreign marriage
verdict. Russell v. Express Jet Airways. Accord- parents terminate their relationship. that could not have been contracted in the
ing to evidence presented at trial, Russell was United States for purposes of estate administra-

116 Summer 2010 Lesbian/Gay Law Notes

tion. The late Fallou Diba, a Senegalese man ever they might travel together. “Both parties tried, unsuccessfully, to put off the Log Cabin
lawfully employed in the United States, died in- take great joy in this event and believe that Republicans case (which went to trial over their
testate in a tragic accident on September 13, sharing it publicly will demonstrate the loving protest on July 13), and are hoping to avoid try-
1997, when he fell down an elevator shaft at familial relationships of a same sex couple and ing the Witt case, which is likely if the policy is
work. Surviving him were two wives in Senegal, their child and work to dispel prejudices repealed in this year’s Defense Authorization
on whose behalf a wrongful death action was as- against same sex families and adoption by gay bill. The government certainly wasn’t looking
serted and settled, creating funds for an estate. men and lesbians,” wrote Judge Glen. forward to the possibility of litigating over a
At the time of his death, Diba remained a citi- “necessity defense” that Lt. Dan Choi and Cpt.
zen and domiciliary of Senegal, where plural New York — In Macula v. Board of Educa- James Pietrangelo II were expected to raise
marriages are legal. The question before the tion, 2010 WL 2698786 (4th Dept. July 9, when they showed up in D.C. Superior Court on
court is how to allocate the proceeds, in light of 2010), the court upheld the Geneseo Central July 14 to answer charges of failure to obey a
New York Estate Powers & Trusts Law School District’s decision to reject a request lawful order stemming from their having
5-1.2(a)(2), which disqualifies a “surviving from the plaintiff, a parent of students at the chained themselves to the White House fence
spouse” from being a distributee if the marriage school, to set up a “truth table” at the high during a demonstration against the policy ear-
is bigamous within the meaning of the Domes- school when military recruiters would be pres- lier this year. So the prosecutors dropped their
tic Relations Law. Under N.Y. law, Diba’s sec- ent, so that he could provide students with charges before the scheduled 10 a.m. trial, ac-
ond marriage would be considered bigamous, “negative information about military service cording to a report later that day from Advo-
but it was legal in Senegal. The court decided that petitioner believed they should consider cate.com. Choi and Pietrangelo, gay service
that Senegalese law should govern this ques- before deciding whether to enlist.” All but one members who have become leading campaign-
tion and the two widows should split the surviv- of the five appellate judges agreed that the ers against the policy, would provide just the
ing spouse’s elective share, to ensure that the school district was not violating any constitu- kind of articulate critique of this blatantly un-
surviving minor children’s shares are not re- tional rights of the petitioner, and had not acted constitutional policy that the government would
duced or eliminated. There can be only one sur- in an arbitrary and capricious manner. Justice rather avoid having articulated in open court.
viving share for an elective spouse. Diba also Fahey dissented, arguing that the school district
left numerous children, who will receive their had denied petitioner’s free speech rights in a Massachusetts — The Massaachusetts Su-
share. “Of course,” wrote Surrogate Lee L. manner that was arbitrary and capricious. preme Judicial Court divided 5-2 on the ques-
Holzman, “the result reached herein might A.S.L. tion whether a 16 year old boy charged with
very well be different if, at the time of either statutory rape and indecent assault and battery
marriage, any of the three parties involved was Criminal Litigation Notes against a younger boy should be able to have
not a domiciliary of a jurisdiction that recog- discovery in support of his defense of selective
nizes a polygamous marriage.” District of Columbia — D.C. Superior Court prosecution, a majority finding that he should,
Judge Lynn Leibovitz acquitted three gay men but on narrow grounds than had been approved
New York — On June 8, New York County — Victor Zaborsky, Dylan Ward, and Joseph by the Juvenile Court. Commonwealth v. Wash-
Surrogate Judge Kristin Booth Glen granted an Price — on charges of obstruction of justice, ington W., 2010 WL 2523440 (June 25, 2010).
application by Cable News Network to film an conspiracy, and evidence tampering in the Both the defendant and the complainant have
adoption proceeding involving a gay couple mysterious murder of D.C. attorney Robert been diagnosed with Asperger’s Syndrome, a
and a child conceived with a surrogate mother. Wone, who was found stabbed to death in a developmental disability. When defendant was
In the Matter of the Adoption of an Infant Whose town-house inhabited by the three men, who 15 and complainant 13, defendant initiated
First Name is Nicholas, File No. 2010-1032. lived together in a polyamorous relationship. sexual activity with complainant. The conduct
New York law provides a multifactorial test for The men claimed that an intruder must have continued until after defendant’s sixteenth
judges to consider in deciding whether to entered the townhouse and stabbed Wone, who birthday, ending soon thereafter. The complain-
authorize filming, including whether any party was lying on a bed in a guestroom after having ant told his parents, who complained to the po-
to the case would be adversely affected. Judge worked late and been invited to stay over the lice. Defendant was charged with statutory rape
Glen appointed Columbia University Law Pro- night rather than drive out to his suburban for the actions postdating his birthday, and in-
fessor Suzanne Goldberg as guardiam ad litem home. The police found no evidence of a decent assault and battery for those prior, in
to present a report to the court on whether al- break-in, and suspected that the men were cov- light of the age spread of two years and the fact
lowing filming would be against the best inter- ering something up. Prosecutors lacked evi- that defendant would be treated as an adult for
ests of the child. Prof. Goldberg opined that the dence sufficient to charge the men with murder, activity after he turned 16. Complaint, who did
filming would not be harmful, and on the con- and the judge found that the prosecutors had not allege force or coercion, was not charged
trary would be in the best interest of the child. failed to prove any of the charged offenses be- with any offense. At first the trial judge rejected
Film from the ceremony was used in a docu- yond a reasonable doubt. The three men are the discovery request, but then became per-
mentary about the gay men and their process of also defendants in a wrongful death action on suaded that plaintiff should be allowed access
having a child that was shown later in June on behalf of Wone’s widow and estate. This case to juvenile court records to determine whether
CNN. Judge Glen noted that had the child been was on hold during the pendency of the crimi- the police brought such charges in cases of ho-
born in New York State, both fathers’ names nal proceedings. The lower civil standard of mosexual sex but not heterosexual sex. The SJC
would have been entered on the birth certificate proof leaves the men vulnerable to liability, es- approved the discovery request, opining it was
so an adoption would not have been needed to pecially as Judge Leibovitz commented that it not necessary to determine in this case whether
secure the co-parent’s parental rights. She also was “very probable” that the men knew more homosexuals are a constitutionally protected
opined that since the men were legally married than they had told the police about Wone’s class, at least at this stage of discovery. An adult
in Connecticut prior to the child’s birth, and death. Having been acquitted in criminal court, charge with a sexual offense could obtain infor-
New York will extend comity to such marriage, the men would be open to questioning in a civil mation in support of a selective prosecution de-
an adoption should not have been necessary in trial. Law.com, July 7. fense by reviewing open court records, but
any event, but because most states do not rec- when charged with a crime against a juvenile,
ognize same-sex marriages, an adoption is pru- District of Columbia — Federal prosecutors the records were not accessible. This justified
dent to secure the parties’ relationship wher- will do anything they can to avoid litigating resort to discovery, so that the prosecutor could
about the “don’t ask, don’t tell” policy. They

Lesbian/Gay Law Notes Summer 2010 117

compile the necessary information to respond finally decided they could not, negotiating a re- during the months of agonizing over the annual
to the questions authorized by the court. The lease agreement under which Fisher is barred budget bill. On June 22, the Senate approved
dissenters basically argued that the discovery from returning to Oklahoma and is required to the Dignity for All Students Act, a measure in-
request was a fishing expedition and that the ju- complete an intensive Alabama program on re- tended to combat bullying in the primary and
venile court’s decision to grant the request was integration into society sponsored by the Equal secondary schools. The measure had previ-
an abuse of discretion. “Based on the rationale Justice Institute. Oklahoma County District ously been approved by the Assembly and was
used by the court, there always might be, at Judge Kenneth C. Watson approved the release expected to receive the approval of the gover-
least hypothetically, some evidence to support a agreement on July 12. A.S.L. @H2 = Legisla- nor. When approved, it would provide the first
statistical claim of selective prosecution in the tive Notes explicit protection for transgendered people in
confidential files of the Juvenile Court, if only Hawai’i — Governor Linda Lingle (Republi- New York statutory law. The Senate also ap-
the accused could get access to it. Because he can) waited until the last day when she could proved the Intimate Partners Adoption Act on
cannot access those file directly, the court has take action, 45 days after the legislature passed June 24, which would specify that unmarried
concluded that the burden should be placed on a Civil Union bill, H.B. 444, and then an- intimate adult partners can jointly adopt a
the prosecutor to compile and provide that in- nounced she would veto the bill, on July 5. The child, thus short-circuiting the necessity for
formation to him. This articulated justification governor said that in her view it was just a mar- two separate proceedings when a same-sex
is unbounded. In sum, the order entered by the riage bill under a different name, and she was couple is acquiring a child through adoption.
Juvenile Court judge was an abuse of discre- opposed to same-sex marriage. She also made Both measures were introduced and champi-
tion, and the grounds on which it has been af- the rather absurd statement that she believed oned by the only openly-gay New York state
firmed represent a misapplication of our juris- the issue should be decided by the people in a senator, Tom Duane. The Senate also approved,
prudence with significant implications for referendum, not by their elected representa- on a vote of 50-11, a measure spearheaded by
baseless and systematic intrusions into the ex- tives in the legislature. This is an odd position Senator Velmanette Montgomery to amend the
ercise of constitutional powers that reside in for the governor to have taken, since in 1998 the human rights law to prohibit employers from
another branch.” Yes, Justice Cordy, but what people amended the state constitution to make discriminating in the granting of funeral or be-
if, in fact, the prosecutors are tougher on gay it clear that they wanted the same-sex marriage reavement leave to employees who are in “com-
kids than non-gay kids? This can only be docu- issue to be a legislative matter. The amend- mitted same-sex relationships.”, according to a
mented through the kind of discovery ordered ment, passed in response to a Hawaii trial June 30 report in The Advocate, which indi-
by the court, since Juvenile Court records are court’s ruling that the state was required to al- cated that the measure had previously passed
sealed. low same-sex couples to marry, states: “The the State Assembly and was expected to be ap-
legislature shall have the power to reserve mar- proved by the governor. * * * However, on June
New York — A jury in Brooklyn has con- riage to opposite-sex couples.” This amend- 8, the Senate Judiciary Committee tabled con-
victed Keith Phoenix of second-degree murder ment differs from all the other state constitu- sideration of the Gender Expression Non-
as a hate crime in the death of Jose Sucuzhanay tional amendments passed in response to the Discrimination Act, which had previously been
and attempted assault as a hate crime in an at- same-sex marriage issue in this respect, mak- approved by the State Assembly. As with many
tack on Romel Sucuzhanay, Jose’s brother. ing the issue one for legislative politics rather other LGBT issues pending in the sharply di-
Prosecutors presented evidence that Phoenix than for constitutional amendments or refer- vided Senate, the solid opposition of Republi-
and an accomplice, Hakim Scott, used anti- enda. Lambda Legal and the ACLU LGBT Pro- can members plus the opposition of Rev. Ruben
Latino and anti-gay slurs during the assaults. ject announced that a lawsuit would be filed Diaz, a Bronx Democrat who is a staunch oppo-
Scott was previously convicted on manslaugh- shortly arguing that something like the civil un- nent of any legislation on gay rights, meant that
ter and attempted assault charges on May 6, but ion law is required to satisfy the Hawai’i Su- there was no majority for the legislation, and
the jury in his case did not find a violation of the preme Court’s ruling in the same-sex marriage rather than see it voted down in committee,
hate crime laws. Scott is scheduled to be sen- case, since the constitutional amendment supporters allowed it to be tabled.
tenced on July 14, and Phoenix will be sen- adopted in 1998 did nothing to change the
tenced on August 5. Gay City News, June 28. court’s sex discrimination analysis and, as Oklahoma — The Tulsa City Council voted
every court that has considered the issue has 6-3 on June 17 to add sexual orientation to the
Oklahoma — Exile! That is the fate of James found, civil unions are not marriages and thus list of protected classes under the city’s non-
T. Fisher, Jr., who was twice convicted and twice the court would not be precluded by the amend- discrimination policy for personnel. The city’s
sentenced to death in the 1982 murder of Terry ment from order the state to adopt some form of Civil Service Commission ha already stated
Gene Neal of Oklahoma City, and who has legal recognition affording equal rights to support for banning sexual orientation dis-
served more than 27 years in prison. Both con- same-sex couples. crimination in city employment. Tulsa World,
victions were set aside by appellate courts June 18.
based on concerns about the quality of legal Illinois — Governor Pat Quinn signed into
representation Fisher received. (See, e.g., law an anti-bullying bill on June 27. The law is Rhode Island — Evidently eager to protect
Fisher v. Gibson, 282 F.3d 1283 (10th Cir. intended to instigate measures to curb harass- transphobic Rhode Island citizens who commit
2002), granting writ of habeas corpus.) Fisher’s ment in schools, including harassment based hate crimes against transsexuals and transves-
convictions were based, in part, on testimony on sexual orientation. The law creates a 15- tites, Governor Donald Carcieri, a Republican,
by a third party, who was the initial suspect in member prevention task force on school bully- vetoed a measure passed by the legislature that
the case, that he and Fisher met Neal in a down- ing, which has a reporting mandate to the gov- would have added gender identity and expres-
town Oklahoma City gay cruising area, and that ernor by March 1, 2011, requires Illinois sion to the state’s hate-crimes law. Carcieri
Fisher killed Neal after having sex with him. schools to present gang-prevention training, claimed that the amendment was unnecessary
Neal was murdered in his apartment by “an as- and requires schools to adopt plans to address because the hate-crimes law already covered
sailant who screwed the broken neck of a wine bullying on pain of losing state financial assis- gender and sexual orientation, thereby proving
bottle into his throat,” reports the Daily Okla- tance. The Advocate, June 30. his inability to absorb and understand legisla-
homan (July 13), and his television and car tive history. In the past, Carcieri vetoed a bill
were stolen. Prosecutors spent nine months af- New York — The final weeks the legislative that would have authorized domestic partners
ter the most recent reversal considering session in New York usually involve a variety of to make funeral arrangements for one another, a
whether they could retry such an old case, and important votes on issues that had accumulated veto so egregious that the legislature overrode it

118 Summer 2010 Lesbian/Gay Law Notes

with a bipartisan vote. The governor is also a declared the Solomon Amendment — a federal the individual’s gender presentation is, of
staunch opponent of proposed marriage equal- law threatening cut-off of federal money to course, very important for transgender indi-
ity bills, even though the state — the nation’s schools that discriminated against military re- viduals who use their passports for identifica-
smallest — is totally surrounded by jurisdic- cruiters – unconstitutional, Dean Kagan re- tion purposes and to engage in international
tions that allow same-sex marriage and it is an vived the ban, while allowing an organization of travel.
easy matter for gay Rhode Islanders to get mar- student military veterans to host military re-
ried across the border. Evidently, he just can’t cruiters on campus. When the Supreme Court Federal — The U.S. Department of Housing
abide gay people. Luckily, he is term-limited reversed the 3rd Circuit, the law school re- and Urban Development announced on June 7
and will be gone in January. verted to providing Career Services facilities. that it was modifying the non-discrimination
Some Republican Senators expressed the view requirements attached to federal housing assis-
Texas — The Dallas Area Rapid Transit that Kagan was hostile to the military and was tance provided to local governments. Under ex-
board voted on June 22 to amend its non- acting illegally in excluding military recruiters, isting law, the rules banned discrimination cov-
discrimination policy to add “gender identity” and at least one — Sen. Sessions — repeatedly ered by the Federal Fair Housing Act in any
to prohibited grounds of discrimination in its misrepresented what she had one. On another program or activity receiving federal housing
operations. According to a June 23 report in the controversial point, Kagan clarified that when money. Under the new rules, recipients will
Dallas Morning News, DART already employ- she had testified that there was no constitu- also have to comply will all state and local
ees a transgendered bus driver, who has had to tional right to same-sex marriage during her anti-discrimination laws. Since more than 20
litigate in the past for equal treatment. confirmation hearings as Solicitor General in states and more than 100 local governmental
2009, she had been speaking about the state of jurisdictions ban sexual orientation discrimi-
Utah — The Summit County Council voted the law at that time, and was not giving her nation, and many of those also ban discrimina-
unanimously during June to pass two ordi- opinion as to a future case raising that question. tion based on gender identity or expression, the
nances forbidding housing and employment The Judiciary Committee was originally sched- effect of HUD’s new requirements is to provide
discrimination based on sexual orientation or uled to vote on the nomination on July 13, but federal backing for those state and local non-
gender identity, becoming the sixth Utah local the vote was delayed at the request of Republi- discrimination policies.
government unit to do so, following Salt Lake can members of the Committee whose staff
City’s example of last year. The County ordi- members were desperately scouring the hun- Federal — In a final rule published in the
nance applies to residents of unincorporated dreds of thousands of pages of documentary Federal Register on June 14, 75 Fed. Reg.
areas in the county. A Salt Lake Tribune poll in evidence for some smoking gun. Barring that, 33491, the Office of Personnel Management
January showed that 2/3 of Utah residents sup- the nomination was widely expected to be con- has updated its definitions of “family member”
port extending protection against discrimina- firmed before the Senate recessed for the sum- and “immediate relative” for leave purposes in
tion to LGBT people, but the legislature has mer. federal executive branch employment. The new
been reluctant to act, even though the Mormon definitions will apply for purposes of sick leave,
Church has dropped its opposition to anti- Federal — During June, the U.S. Department funeral leave, voluntary leave transfer, volun-
discrimination measures. To date, the jurisdic- of Justice issued made public a memo from its tary leave bank, and emergency leave transfer,
tions having adopted such protections are Salt Office of Legal Counsel (dated April 27, 2010) according to a June 15 report by BNA Daily La-
Lake City and County, Park City, Logan, West opining that the criminal provisions of the Vio- bor Report (113 DLR A-6). These definitions
Valley City, and Summit County. Salt Lake Trib- lence Against Women Act (VAWA) do apply to do not apply to FMLA leave, however, which is
une, June 18, 2010. A.S.L. otherwise covered conduct when the offender statutory and can’t be extended by regulatory
and victim are the same sex. The criminal pro- redefinition of terms that are defined in the stat-
Law & Society Notes visions referenced in the memo are 18 USC ute.
2261 (interstate domestic violence); 18 USC
Supreme Court — Gay rights were front and 2261A (interstate stalking), and 18 USC 2262 Federal — On June 22, the Wage & Hour Di-
center during confirmation hearings on Presi- (interstate violation of a protection order). The vision of the U.S. Department of Labor pub-
dent Obama’s nomination of Solicitor General memo focuses on the fact that coverage provi- lished an “Administrator’s Interpretation” (No.
and former Harvard Law School Dean Elena sions using the term “spouse,” which may not 2010-3), construing the phrase “in loco paren-
Kagan to fill the Supreme Court vacancy cre- be construed to apply to same-sex partners be- tis” in the Family and Medical Leave Act, 29
ated by the retirement of Justice John Paul Ste- cause of the Defense of Marriage Act, also refer U.S.C. 2612(A)(1)(a), to make clear that em-
vens. The immediate prior occupants of the Ste- to “intimate partner,” which can be construed ployees who have a parental relationship with a
vens chair were William O. Douglas and Louis to include same-sex partners. The memo was child are entitled to FMLA leave to take care of
D. Brandeis – big shoes to fill!! Senators from issued over the signature of David J. Barron, the child (or bond with the newborn child) even
both sides of the aisle questioned Kagan about Acting Assistant Attorney General. It is avail- if they have no biological or legal relationship
her actions as Harvard Law dean regarding able on Westlaw: 2010 WL 2431395. with the child. The Interpretation specifically
military recruitment. When Kagan became notes that it applies to same-sex couples who
dean, she inherited a policy of denying use of Federal — The State Department announced are raising children. Although FMLA was en-
HLS Career Services facilities to employers on June 9 that it was dropping the requirement acted at the beginning of the Clinton Admin-
who discriminate based on sexual orientation. that transgender applicants provide proof of istration in 1993, this is the first time the gov-
This policy actually dated back several dec- sex-reassignment surgery in order to get pass- ernment has adopted a written interpretation
ades, with HLS being among the first law ports issued in their preferred gender. Under making this apparently obvious application of
schools to challenge the military over its exclu- the new policy, documentation that a doctor has the statutory provision to same-sex partners. It
sion of gay people from service. The policy went provided treatment and diagnosed gender is another of many examples of recent actions
through a period of on again and off again dur- identity disorder will be sufficient to obtain a by the Obama Administration to use existing
ing Kagan’s deanship as the Bush Administra- transitional identification, and certification statutes or regulations in a way that recognizes
tion reinterpreted the policy in such a way that that an individual is living in their preferred the reality of non-traditional families in Amer-
the University, in danger of losing significant gender will merit a passport identifying the in- ica.
federal grants, required the law school to admit dividual in their preferred gender. Obtaining
military recruiters. Then, when the 3rd Circuit passports that identify gender consonant with Federal — Addressing a Gay Pride event
planned by LGBT State Department employ-
ees, Secretary of State Hillary Rodham Clinton

Lesbian/Gay Law Notes Summer 2010 119

announced on June 22 that the State Depart- surance, effective July 1. Employees have to 12, asserting that due to the requirements of the
ment was amending its non-discrimination pol- pay the entire premium for their partners, but New York State Tax Law, sections 607(a) & (b)
icy to include “gender identity,” and that she have the benefit of buying into a competitively and 651(b), married same-sex couples living in
was asking State Department offices around the priced group insurance program. The district’s New York will be treated as unmarried for in-
globe to make LGBT rights advocacy a priority. plan is modeled on a plan that went into effect come tax purposes. The cited provisions, taken
There will also be a new emphasis on docu- July 1 for state employees. Denver Post, June together, are construed by the Department of
menting LGBT human rights issues in foreign 14. Taxation to mean that one’s marital status for
countries for the State Department country re- state and federal tax purposes must be the
ports that are heavily relied upon in asylum Illinois — State Treasurer Alexi Giannou- same, and that a person’s marital status for New
proceedings to determine whether gay refugees lias, candidate in a hotly contested primary for York State tax purposes is determined by their
have a reasonable fear of persecution in their the U.S. Senate, signed an executive order on status for federal tax purposes. So long as the
home countries. June 13 providing additional domestic partner- federal government refuses to recognize validly
ship benefits for gay and lesbian employees of contracted same-sex marriages, therefore, the
Employee Benefits — Because federal law his office. They were already receiving health New York State Tax Department takes the posi-
forbids any agency of the federal government care benefits. The order adds other family and tion that they are not recognized for purposes of
from recognizing a same-sex couple’s marriage medical leave benefits that are routinely ex- state tax law. TSB-A-10(2) (Petition No.
or spousal status for any purpose, those who re- tended to married employees. Chicago Sun 1090921A), May 12, 2010, signed by Jonathan
ceived domestic partnership benefits from their Tribune, June 14. Pessen, Director of Advisory Opinions, Office
employers are stuck paying taxes on imputed of counsel, New York State Department of Taxa-
income for the value of the benefits (which Marquette University — Marquette Univer- tion and Finance. * * * There has been a
would be exempt from taxation for a federally sity announced on June 9 that it had reached a below-the-radar report of at least one surviving
recognized spouse). Some employers, noting settlement with Jodi O’Brien, who was offered same-sex spouse having been informed that he
the inequity or hardship of the extra tax burden, the job of Dean of Arts and Sciences at the uni- will be receiving a refund of taxes paid due to
have quietly added to their benefits by covering versity, only to have the offer rescinded, report- the non-recognition of his marriage, but we’ve
the extra tax costs. Now the issue has gone very edly due to church pressures on the trustees of been unable to secure any written evidence that
public with an announcement that Google, one the university. O’Brien is an openly-lesbian the Tax Department has adopted any policy to
of the most visible employers in the new infor- academic of national reputation who has pub- this effect.
mation economy, had adopted this policy as of lished on the subject of lesbian sexuality. The
July 1. According to a June 30 report in The university’s decision to rescind the offer, which New York — Governor David Paterson issued
New York Times, employee benefits experts pre- had been made pursuant to the enthusiastic Executive Order No. 8.1 on July 14, providing
dicted that Google’s example would inspire recommendation of a search committee, stirred that the judicial screening panels that consider
many other employers to take the same step. Of outrage on campus and public advertisements candidates for appointment by the governor
course, if litigation to invalidate DOMA is by faculty criticizing the university. The Rev. “shall not give any consideration to the age,
eventually successful, this won’t be necessary . Robert A. Wild, president of the university, said creed, color, national origin, sexual orientation,
.. that his decision to rescind the offer was based military status, sex, disability, predisposing ge-
on his judgment about O’Brien’s writings in netic characteristics, marital status or political
Arizona — Responding to a decision by the light of the university’s mission and identity. It party affiliation” of candidates that they con-
state government to end domestic partnership seems quite surprising that Wild would not pay sider. The factors the screening panels are sup-
benefits for state employees, University of Ari- attention to these issues before such an offer posed to consider are “each candidate’s integ-
zona came up with a new plan to subsidize in- was made, which suggests that somebody is not rity, independence, intellect, judgment,
surance for domestic partners of its employees, being forthright about what was going on. temperament and experience.” In recruiting
“in order for us to be competitive, to be able to candidates to apply for appointments, “the Ju-
attract talented people, we need to be able to of- University of Memphis — On June 16, the dicial Screening Committees shall strive to find
fer benefits that other employers are offering,” University of Memphis began offering family candidates that reflect the diverse backgrounds
said Allison Vaillancourt, UA’s Vice President membership to its student recreation center to and experiences of the citizens of this State.”
for Human Resources. Arizona Daily Star, June students who prove they are living in a family The order is published in 9 NYCRR 7.8.1.
4. unit, regardless of the sexual orientation of the
adults in the unit. The University took a week to Lesbian Parenting — A long-term longitudi-
California — The California Fair Political change its policy after receiving a complaint nal study of lesbian parenting has concluded
Practices Commission has proposed that a fine from a concerned female student, who wanted that children raised by lesbian couples seem to
be imposed on The Church of Jesus Christ of to be able to bring her wife and kids to the rec- turn out better than their peers raised by
Latter-Day Saints (LDS — commonly known as reation center, but had been told she could not different-sex couples or single parents, at least
the Mormon Church), for violations of Califor- get a family membership because she and her judging by various measures of positive
nia election finance law in connection with the wife were not married. They are registered do- achievement and adjustment and adverse per-
Proposition 8 initiative vote in November 2008. mestic partners in Eureka Springs, Arkansas, a sonality characteristics. The U.S. National Lon-
The Committee found that LDS failed to report jurisdiction that allows non-residents to regis- gitudinal Lesbian Family Study results were re-
direct last-minute financial support to the Yes ter as domestic partners. The couple did not go leased on June 7 by the Williams Institute at
on 8 campaign. Investigations have also uncov- to a same-sex marriage state due to the ex- UCLA Law School. The study is headed by UC
ered considerable in-kind contributions to the pense, requiring a trip of at least 800 miles. In San Francisco Psychiatry Professor Nanette
Yes on 8 campaign from the Mormon Church reporting on this story, the Memphis Commer- Gartrell. Copies of the study are available on
that were not reported. The Commission docu- cial Appeal (June 17) noted that East Tennessee the website of the professional journal Pedi-
mented $36,928 in 13 unreported monetary State University in Johnson city was also offer- atricts, at tinyurl.com/2eao6cx1.
donations, and recommended a penalty of ing domestic partnership memberships at its
15%, or $5,539.00. FPPC No. 2008-0735. student recreation center. The Tennessee Board Texas — Trustees of the Alamo Colleges in
of Regents approved the change of policy. San Antonio have voted to ban sexual orienta-
Colorado — The Aurora Public School dis- tion discrimination at the school at a June 22
trict has begun allowing domestic partners of New York — The New York State Department meeting, but have hesitated to add gender iden-
employees to register for medical and dental in- of Taxation issued an advisory opinion on May

120 Summer 2010 Lesbian/Gay Law Notes

tity as well. Advocates say they will spend more the decision is based. A decision will not be il- Other International Notes
time trying to educate the trustees about the logical, irrational or unreasonable simply
particular problems faced by transsexuals. San because, on probative evidence giving rise to China — Advocate.com reports that a Beijing
Antonio Express-News, June 23. different processes of reasoning, one conclu- court dismissed a lawsuit brought by a man
sion has been preferred to another possible against the Red Cross when it refused to let him
Presbyterian Church — Church leaders conclusion. This restated long-standing Aus- donate blood becuse he is gay. Wang Zizheng
meeting in general assembly in Minneapolis tralian decisional law on the subject. They as- filed suit asking for an apology and permission
voted to allow non-celibate gays in committed serted that there was no sense in which the de- to become a blood donor. According to the press
relationships to serve as clergy, but were not cision that SZMDS did not fear persecution report, the court ordered the case dismissed
ready to change the church’s definition of mar- could be said to be clearly unjust, arbitrary, ca- without issuing any explanatory opinion.
riage yet. The vote on clergy is not final, since pricious, not bona fide or unreasonable in the
changes in church policy must be arproved by a sense required to amount to jurisdictional error. Costa Rica — The Constitutional Court has
majority of the church’s 173 U.S. presbyteries. ordered the nation’s Elections Tribunal to sus-
This will be a second time around on the gay The Tribunal had not accepted SZMD’s pend a ballot question on same-sex marriages
clergy issue, as a previous general assembly claim to have “engaged in the practice of homo- that was to be included in December 2010 mu-
approved the change, but sufficient presbyter- sexuality” in the UAE. Crennan and Bell JJ nicipal elections, while the Court studies the
ies did not. St. Louis Post-Dispatch, July 9. noted that while the applicant was having his question whether allowing the vote would vio-
A.S.L. homosexual affair in the UAE, homosexual sex late any international treaty requirements. Op-
was criminalised under both civil and Shari’a ponents of the anti-marriage referendum have
Australian High Court Rejects Sexual Orientation law. The Tribunal had accepted that homosexu- argued that it is improper to allow the majority
Asylum Claim From Pakistani Man als as a social group in Pakistan faced persecu- of the population to vote on the rights of a tiny
tion. It also assumed that a person with a genu- minority.
The High Court of Australia has ended the at- ine fear of persecution for that reason would not
tempts of a Pakistani applicant to gain refugee go back to Pakistan and would seek asylum at Ireland — The upper house of the parlia-
status when he claimed a well-founded fear of the first available opportunity. The Tribunal ment of the Irish Republic, called the Seanad,
persecution on the ground of his homosexuality concluded that, on the basis of his conduct, it voted 48-4 in favor of a Civil Partnership Bill on
if returned to Pakistan. The case was Minister was improbable that SZMDS feared persecu- July 8, it having previously been approved by
for Immigration and Citizenship v SZMDS tion because of homosexuality as claimed. The the lower house, called the Dail. The vote came
[2010] HCA 16; 266 ALR 367 (“SZMDS” is Federal Court differed in finding that SZMDS’s after a marathon 23-hour debate, according to a
the appellation, unique to this claimant, of the claim of such a fear was plausible. Crennan and July 9 report in the Irish Times, with 77 amend-
kind required to be applied to all Migration Act Bell JJ thought that, in this case, there was room ments being offered by a small but outspoken
litigants in Australia). for a logical or rational person to reach the same group of opponents who sought to create all
decision as the Tribunal. It was not the case that sorts of exceptions and exemptions, who now
SZMDS was married with four children in only one decision was open on the evidence or threaten to file a lawsuit claiming the law is
Pakistan. He arrived in Australia in 2007. In that there was no probative evidence for the de- invalid due to constitutional provisions protect-
support of his application for a protection visa cision. It was not the case that there was no logi- ing traditional marriage and the lack of various
he claimed that he had a homosexual relation- cal connection between the evidence and the religious conscience objections. The bill would
ship with an Indian boy and his boss in the inferences or conclusions drawn. It could not extend marriage-like treatment to same-sex
United Arab Emirates from 2005 until 2007 be said that the Tribunal’s reasons were unin- couples who register as partners in the areas of
and feared that if he returned to Pakistan he telligible. property, social welfare, succession, mainte-
would face persecution and his family would be nance, pensions and taxes. It has been fiercely
ashamed. The decision to reject his application The split in the decision essentially came criticized by many Irish gay rights advocates as
was affirmed by the Refugee Review Tribunal down to the value judgment of the majority that sealing Irish gays into a second class status,
on the basis of evidence that he had returned to there was not such gross irrationality or illogi- and some have called for its rejection by Presi-
Pakistan to visit his family for three weeks be- cality in deciding that SZMDS did hold the re- dent Mary McAleese has the option of signing
fore coming to Australia and had failed to seek quired well-founded fear of persecution when the measure into law or referring it to the Su-
asylum when visiting the United Kingdom in he had visited his family in Pakistan after his preme Court if she has doubts as to its constitu-
2006. The Tribunal considered these facts to be claimed relationship in the UAE and had failed tionality. If it is approved, it would become ef-
inconsistent with SZMDS’s asserted fear of per- to claim asylum in the UK as to warrant the con- fective in January 2011. In the meantime, the
secution. clusion that the decision was affected by juris- government would consider additional legisla-
dictional error. Interestingly, Bell J, the most re- tion necessary to adjust social welfare and taxa-
The Federal Court of Australia had quashed cent appointment to the bench and who has not tion rules to accommodate the new law. Irish
the Tribunal’s decision on the ground that its hidden her lesbianism, sided with the majority. Times, July 15.
reasoning that he was not a homosexual was The minority included Gummow J, the Court’s
“based squarely on an illogical process of rea- senior puisne judge, who has a track record of Ireland — The government withdrew its ap-
soning,” such that the Tribunal fell into juris- writing the Court’s leading judgments. Gum- plication to appeal a ruling by the High Court
dictional error. In a 3-2 decision, the High mow J was in the majority in the landmark deci- that found Irish law on transgender rights to
Court held that neither the Tribunal’s decision sion in 2003 that it is error to reject a claim for violate the European Convention on Human
nor the findings it made on the way to its deci- refugee status made on the ground of homo- Rights in case that was brought by Dr. Lydia
sion were irrational or illogical such that it fell sexuality by saying that the applicant could Foy, who was registered as male at birth and
into jurisdictional error. Two judges in the ma- avoid persecution by living a closeted life in fought for the right to live as a legally recog-
jority, Crennan and Bell JJ (both female), held their home country (Appellant S396/2002 v nized woman. It is expected that the govern-
that the test for illogicality or irrationality Minister for Immigration and Multicultural Af- ment will introduce legislation similar to that
amounting to jurisdictional error involves ask- fairs, [2003] HCA 71; 216 CLR 473). David adopted in the U.K. to provide a mechanism for
ing whether reasonable minds might adopt dif- Buchanan SC legally recognized gender identity. Irish Times,
ferent reasoning or might differ in any decision June 22.
or finding to be made on evidence upon which

Lesbian/Gay Law Notes Summer 2010 121

United Kingdom — Theresa May, Home logical” parent, said the judge, there was a dif- Now would be a good time for ABA members
Secretary in the new coalition government ference between such status and the legal who support marriage equality to urge their
headed by David Cameron (Conservatives) and duties attached to parental status. Even though state and/or organizational delegates to support
Nick Clegg (Liberal Democrats), announced defendant had secured a court order to get con- Resolution 111.
that men with convictions for gay sex with tinued contact, including shared residence,
someone over the age of 16 will have those rec- with the child, that did not suffice under exist- Paula Ettelbrick, former executive director of
ords expunged. Britain decriminalized gay sex ing statutes. “In my view it is for the legislature the International Lesbian & Gay Human Rights
for adults in 1967, but set the age of consent at to determine who should be financially respon- Commission as well as former legal director of
that time at 21, so men continued to be prose- sible for children if it is to extend beyond those Lambda Legal, has been appointed executive
cuted and convicted if they had sex when who are legal parents,” wrote the court. Daily director of the Stonewall Community Founda-
young. The age was dropped to 18 in 1994, and Telegraph, June 18. tion, a charity that raises money to support
16 in 2000. “It’s not fair that a man can be non-profit community organizations and activi-
branded a criminal because 30 years ago he United Kingdom — The British Medical As- ties in the NYC metro area. The organization is
had consensual sex with another man,” ex- sociation has approved a motion at its annual the LGBT equivalent of United Way or United
plained May in announcing the change. “As a conference condemning therapy to change sex- Jewish Appeal.
government we have made clear our determina- ual orientation. The motion called for the Na-
tion to take concerted action to tear down barri- tional Health Service to investigate cases where The National LGBT Bar Association will
ers to equal opportunities and build a fairer so- it appeared that such treatments were being present its Dan Bradley Award to Lambda Le-
ciety.” Cameron made a strong pitch for gay funded by taxpayers, pointing to a recent sur- gal’s Legal Director Jon Davidson during Lav-
votes during the recent parliamentary elec- vey showing that one out of six therapists admit- ender Law 2010 in Miami. Davidson joined
tions, and held a Gay Pride reception at 10 ted that they have attempted to “cure” patients Lambda Legal in 1995 after working for many
Downing Street — the first such event to be from having homosexual feelings. A.S.L. years as an LGBT rights staff attorney with the
held by a Conservative P.M. Although he is ACLU of Southern California. Before joining
committed to seeking certain changes in law Professional Notes the ACLU, he was a partner at the firm of Irell &
that are sought by gay lobbyists, he remains op- Manella, and has taught as an adjunct professor
posed to same-sex marriage or to ending the At its House of Delegates Annual Meeting in for USC, Loyola (LA), Whittier, and UCLA. He
ban on blood donations by gay men. Daily Tele- San Francisco August 9-10, the American Bar is a graduate of Stanford University and Yale
graph, June 17; Independent, June 15. Association will consider Resolution 111, of- Law School.
fered by its Section of Individual Rights and
United Kingdom — Justice Moylan of the Responsibilities, joined by several other ABA Retired Australia High Court Judge Michael
High Court in Leeds, ruled on June 17 that a internal bodies as well as the bar associations of Kirby has been awarded the Gruber Justice
lesbian whose ex-partner had a child through New York State, New York City, San Francisco, Prize by the Gruber Foundation of New York.
donor insemination could not be ordered to pay Massachusetts, Vermont, Washington State, This is an annual prize worth $500,000, recog-
maintenance for support of the child. The cou- Beverly Hills, and the National LGBT Bar As- nizing the recipient’s contribution to human
ple did not have a civil partnership ceremony sociation, urging state, territorial and tribal rights and justice issues. Judge Kirby emerged
so, opined the court, the defendant could not be governments to eliminate all of their legal barri- on the court as one of the most important and in-
deemed to be a “parent.” Although the defen- ers to civil marriage between two persons of the fluential openly-gay jurists in the world, and
dant might be considered a “social and psycho- same sex who are otherwise eligible to marry. has published and lectured widely on human
rights and LGBT rights. The Prize will be pre-
sented in a ceremony in Washington, D.C. on
October 11, according to a press release from
the Law Council of Australia. A.S.L.

AIDS & RELATED LEGAL NOTES

Obama Administration Announces National age of HIV-infected people who know their Aside from prevention efforts, however, ac-
Strategy to Combat HIV/AIDS status, through a stepped up program of HIV tivists pronounced disappointment that the
With advanced fanfare and a White House testing. Another goal is to increase the portion strategy did not include any major ramping up
ceremonial roll-out on July 13, the Obama Ad- of newly -diagnosed people who get clinical of efforts to research a cure, although there have
ministration announced that it was setting a se- care within three months from 65 percent to 85 been recent reports of tantalizing leads in that
ries of specific targets and adopting a coordi- percent. direction. Only a tiny proportion of the national
nated national strategy to combat HIV/AIDS research budget has been allocated to cure-
that is unprecedented in the United States. In a The major change in emphasis from prior related research. Most federal spending on
letter introducing the report underlying the pol- federal HIV prevention efforts is to acknowl- HIV/AIDS goes to subsidize state AIDS Drug
icy, President Obama stated that the country is edge that special efforts need to be made fo- Assistance Programs (ADAP) and thus far pa-
“experiencing a domestic epidemic that de- cused on the communities most heavily hit by thetically ineffective public health prevention
mands a renewed commitment, increased pub- the epidemic, including gay and bisexual men, programs. A.S.L.
lic attention, and leadership.” whose needs in this regard were not empha- 8th Circuit Remands for De Novo Review of
sized during the Bush Administration. The big- Disability Benefits Denial
One of the targets is to lower the annual rate gest criticism of the new strategy is that it does Eric S. Ringwald will get a second chance to
of new HIV infections in the U.S. by 25 percent, not propose increased federal funding, just a persuade a federal court that Prudential Insur-
from 56,300 to 42,225, by 2015. Critics shuffling around of funding at existing levels, ance Company erred in rejecting his claim for
quickly pointed out that this seemed relatively although this could have a salutary effect to the long-term disability benefits, as a result of a
unambitious as a goal, but was probably extent that existing priorities waste funds on in- ruling by the 8th Circuit U.S. Court of Appeals
adopted because the policy may be criticized as effective programs, such as abstinence educa- on June 21, finding that District Judge Lyle
more talk than targeted funds. Another target is tion for teens, rather than targeted safe-sex
to increase from 79 to 90 percent the percent- education and distribution of condoms where
they will do the most good.

122 Summer 2010 Lesbian/Gay Law Notes

Strom applied the wrong standard of review in that there is no effective grant of discretion to a once Doe had told anybody that he was HIV+,
his earlier decision rejecting Ringwald’s ap- plan administrator unless it is contained in the he could no longer claim that the information
peal of the insurer’s claim denial. Ringwald v. formal plan document, and that recently the 8th was private. During discovery, they sought in-
Prudential Insurance Company of America, Circuit had fallen into line with the other cir- formation about Doe’s sexual partners to try to
2010 WL 2471702. cuits, in Jobe v. Medical Life Insurance Co., 598 make their case that he had revealed his HIV
F.3d 478 (8th Cir. 2010). status to many people voluntarily. A.S.L.
Ringwald worked as a game table dealer at Social Security Disability Cases
Harrah’s Casino in the St. Louis area, covered The SPD is prepared, as required by ERISA, 10th Circuit — In Mushero v. Astrue, 2010 WL
by a group disability benefits policy that was to inform plan beneficiaries of their rights un- 2530728 (June 24, 2010) (not published in
sold to his employer by Prudential. The policy der the plan. Since most beneficiaries never F.3d), the U.S. Court of Appeals for the 10th Cir-
provides up to 24 months of short-term disabil- look at the actual plan, the SPD, which is re- cuit ruled that the agency had errer in assessing
ity benefits for employees who become unable quired to be written in plain language accessi- the plaintiff’s “residual functional capacity,”
to perform their jobs, and can convert to long- ble to ordinary workers, is their primary source so the denial of disability benefits in his case
term disability benefits when employees be- of information. A body of case law has grown up “is not supported by substantial evidence.”
come unable to perform any gainful employ- binding plans to provide benefits as described Plaintiff claims disability resulting from HIV
ment. in the SPD, even though the SPD may not prop- infection, back and neck problems, depression,
erly reflect a more narrow grant of benefits in and other impairments. The court found that
Ringwald became unable to work due to a the plan itself, thus the earlier 8th Circuit case the ALJ had failed to follow the necessary steps
combination of HIV, depression and fatigue, relied upon by Judge Strom. and make requisite findings concerning the im-
and was terminated by Harrah’s on April 16, pact of plaintiff’s depression on his ability to
2004. He applied for and received 24 months of But the reasons underlying that body of case work. “On remand,” wrote Senior Circuit Judge
short-term disability benefits from Prudential. law do not pertain to issue of plan administra- Wade Brorby for the court, “the ALJ should en-
He also filed a claim for long-term benefits, tion such as the scope of authority given to a sure that any reasons for discounting the treat-
which Prudential denied. Prudential noted that plan administrator. “One context where the ra- ing psychiatrist’s opinion are supported in the
the disability benefits plan had a 24-month tionale behind the rule would be contradicted record.” The court noted that having dis-
lifetime cap for disability benefits due in whole by a blanket ‘SPD prevails’ rule,” he wrote, “as counted the psychiatrist’s opinion, the ALJ had
or part to a mental illness, and premised its de- other circuits have recognized, is the situation then improperly omitted the element of Plain-
nial on its conclusion that Ringwald’s disability involved here and in Jobe, where the SPD pur- tiff’s depression from the hypothetical ques-
was due, in part, to his depression. Ringwald ports to enlarge the rights of the plan adminis- tions posed to the vocational expert who was
also applied to the Social Security Administra- trator at the expense of plan participants when called to testify on Plaintiff’s ability to engage
tion for disability benefits, was found qualified, the plan itself does not confer those rights. . . . in gainful employment. The court found that
and was awarded benefits. Under the Pruden- Here, there are no terms in the plan which allow because Plaintiff’s depression was not neces-
tial policy, any benefits he received from Social it to be amended by inserting into the SPD such sarily irrelevant to the ultimate issue in the
Security would be set off to reduce his benefits critical provision as the administrator’s discre- case, even if it wasn’t severe, its omission could
from Prudential. tionary authority to interpret the plan or to de- not be considered harmless error. A.S.L.
termine eligibility for benefits. Indeed, this AIDS Legislative Notes
Having exhausted internal plan appeals, particular plan wholly fails to comply with Sec. New York — On June 25, the N.Y. State Senate
Ringwald sued in the U.S. District Court for the 1102(b)(3)’s requirement to include a proce- approved a measure that would require routine
Eastern District of Missouri. He argued that he dure governing amendment of the plan. Thus, offering of HIV tests to individuals age 13-64 in
was entitled to a de novo review of his claim by there is no basis for concluding that the pur- all health care settings. A few days earlier, the
the court, because the insurance contract that ported grant of discretion in the SPD is a proce- Senate approved Senator Tom Duane’s Ex-
Prudential sold to Harrah’s did not give discre- durally proper amendment of the policy, and panded Syringe Access Program bill, which
tion to the administrator (Prudential) to inter- therefore ‘the policy’s failure to grant discretion would authorize the expansion of “needle ex-
pret the plan. Prudential argued that the court results in the default de novo standard.’” change” programs to combat the spread of HIV
should use a more deferential “abuse of discre- among injection drug users. And earlier in the
tion” standard, because the Summary Plan De- On remand, Ringwald will be entitled to de month, the chamber also endorsed a Duane
scription (SPD) states that the administrator novo review, so it will be up to the district court proposal to amend the penal law to provide that
has “the sole discretion to interpret the terms of to determine whether a long-term disability at- a person is not criminally liable for possessing
the Group Contract, to make factual findings, tributable to HIV disease, which has depres- syringes and drug residue in or on syringes
and to determine eligibility for benefits.” sion as a complicating factor, is subject to the when they are participating in New York’s Ex-
24-month cap in the Prudential policy. panded Syringe Access Program or Syringe Ex-
Relying on an old 8th Circuit precedent, change Program. A.S.L.
Judge Strom accepted Prudential’s argument Ringwald is represented by Sophie Wood- AIDS Law & Society Notes
and found that Prudential had not abused its worth and Gregory A. Oliphant of St. Louis, Federal — At its June 10-11 meeting, the Advi-
discretion in denying the benefits. The Court of Missouri. A.S.L. sory Committee on Blood Safety and Availabil-
Appeals disagreed, in an opinion by Circuit ity of the U.S. Department of Health and Hu-
Judge Kermit E. Bye, finding that Ringwald is AIDS Litigation Notes man Services voted 9-6 to continue the current
entitled to a de novo review of his claim. policy, adopted in the 1980s, of rejecting blood
Indiana — Plaintiff in a John Doe action won a
Judge Strom had focused on a 1994 8th Cir- $1.25 million judgment against Internal Medi-
cuit ruling, Jensen v. SIPCO, Inc., 38 F.3d 945, cine Associates for disclosing his HIV+ status
in which the court of appeals had commented when they referred his past due medical bill to
that “SPDs are considered part of the ERISA collection agents, who included the information
plan documents.” Following this logic, Strom in a court filing demanding payment, acording
found that he was in the position of reviewing a to a July 5 on-line report on bilerico.com. At
discretionary decision, and thus abuse of dis- trial, the plaintiff testified that IMA had told
cretion would be the appropriate standard. more people that he was HIV+ than he had.
The court rejected the argument for IMA that
Judge Bye pointed out that many federal
courts, including other circuit courts, have held

Lesbian/Gay Law Notes Summer 2010 123

donations from any man who has had sex with tive donors honestly responding to screening on June 17 at the International Labor Organiza-
another man since 1977, regardless of whether questionnaires and, in effect, disqualifying tion’s annual governing conference voted to
the individual prospective donor has repeat- themselves voluntarily. Under the circum- adopt new international standards aimed at
edly tested negative for STDs (including HIV stances under which blood drives are held, con- preventing discrimination in the workplace
and HBV). Although representatives of the sequently, it may give incentives to “closeted” against employees infected with HIV. The stan-
blood banking industry, including the Ameri- individuals to lie about their sexual practices dards call for member governments to adopt ex-
can Red Cross, have changed their former posi- on the forms in order that disguise their sexual- press policies banning HIV-related workplace
tions and now argue that this policy is too ity from co-workers, thus posing a greater risk discrimination, and also oppose HIV testing as
broadly exclusive, especially in light of the fre- to the blood supply. Thus, it is not surprising a mandatory condition for employment. In ad-
quent shortages of blood supplies, a majority of that the panel characterized the policy as dition, the standards make disclosure of HIV
the Advisory Committee apparently still ad- “suboptimal” and recommended that research status voluntary. In addition to adopting the
heres to the view that the existence of a window be undertaken to see whether a less exclusion- standards, which will be sent to all member na-
period in which a donor who has been infected ary policy can be devised. A.S.L. tions, the delegates approved a resolution call-
may test negative for STDs, taken together with ing on the ILO’s governing body to establish a
the less than perfect performance of blood International AIDS Notes global action plan to ensure widespread imple-
screening procedures, leaves too high a risk to mentation and regular reporting from member
adopt a less restrictive donation policy. Of Representatives from governments, labor un- governments. BNA Daily Labor Report, 116
course, the current policy relies upon prospec- ions, and employer groups meeting in Geneva DLR A-4 (June 18, 2010). A.S.L.

PUBLICATIONS NOTED & ANNOUNCEMENTS

Movement Legal Positions cacy, and Communications Departments. For Amendment Defenses to Discrimination in Pub-
full details, consult the NYCLU website. Can- lic Accommodations, 12 SCHOLAR 585
Attorney Employment Openings at Immi- didates should have at least three years of rele- (Spring 2010) (St. Mary’s Law Review on Mi-
gration Equality vant experience (or the equivalent). Applicants nority Issues).
should email a cover letter (with salary require-
Immigration Equality, a national organization ments) and resume by email to jobs@ny- Arader, Jared B., Chambers v. Ormiston: The
that works to end discrimination in U.S. immi- clu.org, with Litigation & Policy Counsel in the Harmful and Discriminatory Avoidance of the
gration law, to reduce the negative impact of subject line. NYLS is an affirmative ac- Laws of Comity and Public Policy for Valid
that law on the lives of LGBT and HIV+ peo- tion/equal opportunity employer and encour- Same-Sex Marriages, 55 Roger Williams U. L.
ple, and to help obtain asylum for those perse- ages applications from women, people of color, Rev. 187 (Spring 2010) (Argues that R.I. Su-
cuted in their home country based on their sex- persons with disabilities, and LGBT individu- preme Court erred in failing to apply comity to
ual orientation, transgender identity or HIV+ als. hold that R.I. Family Court had jurisdiction
status, has announced two staff attorney open- 2010 Lavender Law Career Fair & Conference over a divorce petition from a same-sex couple
ings in their Washington, D.C., office, for a bi- The 2010 Lavender Law Career Fair & Confer- who had married in Massachusetts).
national couple attorney and for a detention and ence, presented by the National LGBT Bar As-
regulatory advocacy attorney. Full details about sociation, will be held at the Loews Miami Banks, Taunya Lovell, Troubled Waters:
the positions can be found on the organization’s Beach Hotel on August 26-28, 2010. The pro- Mid-Twentieth Century American Society on
website, immigrationequality.org. Both posi- gram includes a full day career fair for law stu- “Trial” in the Films of John Waters, 39 Stetson
tions require that the applicant be a graduate of dents and several days of plenary sessions, L. Rev. 153 (Fall 2009).
an accredited law school and admitted to prac- panel discussions and workshops. Special fea-
tice in at least one state. There is a preference tures include a workshop on LGT Issues and Bates, Stephen, Father Hill and Fanny Hill:
for multilingual capacity and immigration law the Obama Administration, for which the panel An Activist Group’s Crusade to Remake Obscen-
experience. IE is an affirmative action em- includes David Lat (moderator — founder of ity Law, 8 First Amend. L. Rev. 217 (Spring
ployer and especially encourages immigrants Above the Law blog), Jon Davidson (Lambda 2010).
and people of color to apply. Applicants should Legal), Matt Nosanchuk (US Department of
submit a detailed cover letter and resume. Ap- Justice Civil Rights Division), Elaine Kaplan Byrn, Mary Patricia, and Jenni Vainik Ives,
plicants who are selected to receive an interview (U.S. Office of Personnel Management), Court- Which Came First: The Parent or the Child?, 62
will be asked to submit a writing sample, such as ney Joslin (Chair of the ABA’s Commission on Rutgers L. Rev. 305 (Winter 2010) (argues that
a legal research memo or article, and three refer- Sexual Orientation and Gender Identity), and state parentage statutes should provide that in-
ences. Applications must be submitted elec- Paul Smith (Partner at Jenner & Block, winner tended parents are the legal parents at time of
tronically to: [email protected]. of the ABA’s 2010 Thurgood Marshall Award, birth when alternative reproductive technology
and among the nation’s premiere U.S. Supreme and surrogacy are involved, to ensure that child
New York Civil Liberties Union Staff Attor- Court advocates). For information, email to: has its legal relationship to its parents fixed at
ney Position [email protected], or consult the National birth).
LGBT Bar Association website.
The New York Civil Liberties Union seeks an LESBIAN & GAY & RELATED LEGAL ISSUES: Calvert, Clay, Freeway Porn & the Signs of
attorney to conduct and supervise litigation, Abodeely, Jennifer Ann, Thou Shalt Not Dis- Sin: Sex, Cigarettes and the Censorship of Bill-
policy work, and advocacy in the areas of repro- crimination: A Proposal for Limiting First boards, 30 Loy. L.A. Ent. L. Rev. 215 (2010).
ductive rights and the rights of LGBT individu-
als. The Litigation and Policy Counsel will have Camp, Anna C., Cutting Cupid Out of the
primary responsibility for legal and policy work Workplace: The Capacity of Employees’ Consti-
in these two priority issue areas, reporting to the tutional Privacy Rights to Constrain Employers’
Legal Director and working in close consulta- Attempts to Limit Off-Duty Intimate Associa-
tion with the Directors of the Legislative, Advo- tions, 32 Hastings Comm. & Ent. L.J. 427
(2010).

Chaplin, Michael E., Workplace Bullying:
The Problem and the Cure, 12 U. Pa. J. Business
L. 437 (Winter 2010).

124 Summer 2010 Lesbian/Gay Law Notes

Chemerinsky, Erwin, Two Cheers for State of pre-Roberts Court ruling in Lawrence v. preme Court had found a constitutional flaw as
Constitutional Law, 62 Stan. L. Rev. 1695 Texas). a result since this article went to press.)
(June 2010) (cautionary note about using state
constitutional law to seek to advance civil Mains, Benjamin A., Virtual Child Pornog- Sellers, M.N.S., Universal Human Rights in
rights and civil liberties). raphy, Pandering, and the First Amendment: the Law of the United States, 58 Am. J. Comp. L.
How Developments in Technology and Shifting 533 (2010). Shelton, Margaret Kelly, First
Cohen, Matthew, If “I Do,” Then So Should First Amendment Jurisprudence Have Affected Comes Love, Then Comes “Marriage”? Not for
You: An Analysis of State Constitutional Bans the Criminalization of Child Pornography, 37 Some: A Look at the Struggle of Same-Sex Cou-
on Same-Sex Marriage, 39 Sw. L. Rev. 365 Hastings Const. L. Q. 809 (Summer 2010). ples to be Recognized as Legally “Married”, 31
(2009). Whittier L. Rev. 345 (Winter 2009).
Meyer, David D., Fragmentation and Con-
DeMitchell, Todd A., and Suzanne Eckes, solidation in the Law of Marriage and Same- Stark, Emily L., Get a Room: Sexual Device
Sexual Orientation and the College Campus, Sex Relationships, 58 Am. J. Comp. L. 115 Statutes and the Legal Closeting of Sexual Iden-
254 Ed. Law Rep. 19 (April 29, 2010) (West (2010). tity, 20 Geo. Mason U. Civ. Rts. L.J. 315 (Sum-
on-line publication). mer 2010).
Olivo, Andrew, Secrets and Lies: The Intelli-
Dubler, Ariela R., Sexing Skinner: History gence Community’s “Don’t Ask, Don’t Tell”, 12 Tebbe, Nelson, and Deborah A. Widiss,
and the Politics of the Right to Marry, 110 Co- SCHOLAR 551 (Spring 2010) (St. Mary’s Law Equal Access and the Right to Marry, 158 U.
lum. L. Rev. 1348 (June 2010). Review on Minority Issues — Critique of con- Penn. L. Rev. 1375 (April 2010).
tinuing restrictions on top security clearances
Eskow, Jocelyn (editor), Prostitution and Sex for gay people). Waldron, Jeremy, Dignity and Defamation:
Work, 11 Georgetown J. Gender & L. 163 (An- The Visibility of Hate, 123 Harv. L. Rev. 1596
nual Review 2010). Oppenheimer, David B., California’s Anti- (May 2010) (2009 Oliver Wendell Holmes
Discrimination Legislation, Proposition 14, Lecture).
Farber, Sara E., Presidential Promises and and the Constitutional Protection of Minority
the Uniting American Families Act: Bringing Rights: The Fiftieth Anniversary of the Califor- Wangenheim, Melissa, ‘To Catch a Predator,’
Same-Sex Immigration Rights to the United nia Fair Employment and Housing Act, 40 Are We Casting Our Nets Too Far?: Constitu-
States, 30 B.C. Third World L.J. 329 (Spring Golden Gate Univ. L. Rev. 117 (Winter 2010). tional Concerns Regarding the Civil Commit-
2010). ment of Sex Offenders, 62 Rutgers L. Rev. 559
Parsi, John, The (Mis)categorization of Sex in (Winter 2010).
Gelfman, Ilana, Because of Intersex: Inter- Anglo-American Cases of Transsexual Mar-
sexuality, Title VII, and the Reality of Discrimi- riage, 108 Mich. L. Rev. 1497 (June 2010). White, Roederick C., Sr., How the Wheels
nation “Because of . . . [Perceived] Sex”, 34 Come Off: The Inevitable Clash of Irreconcilable
N.Y.U. Rev. L. & Social Change 55 (2010). Pfister, Jessica, and Tiffany V. Wynn (edi- Jurisprudence: Laws Based on Orthodox
tors), Legal Recognition of Same-Sex Relation- Judeo-Christian Theology in a Pluralistic Soci-
Ginsberg, Wendy R., Federal Employee ships, 11 Georgetown J. Gender & L. 1 (Annual ety, 37 Southern Univ. L. Rev. 127 (Fall 2009)
Benefits and Same-Sex Partnerships, Congres- Review 2010). (includes a critique of the resort to religiously-
sional Research Service (June 24, 2010) (ac- based moral arguments in opposing the right of
cessible at www.crs.gov) (analysis of degree to Prather, Raymond, Considerations, Pitfalls, same-sex partners to marry, in the context of
which executive branch can extend benefits to and Opportunities That Arise When Advising Louisiana case law).
same-sex partners of federal employees without Same-Sex Couples, 24 Probate & Property No.
passage of new legislation; considers policy is- 3, 24 (May/June 2010). Womack, Katherine A., Please Check One –
sues to be resolved if Congress were to adopt Male or Female? Confronting Gender Identity
pending legislation authorizing partnership Ramais, Colleen McNichols, ‘Til Death Do Discrimination in Collegiate Residential Life,
benefits for federal employees). You Part. . . And This Time We Mean It: Denial 44 U. Richmond L. Rev. 1365 (May 2010).
of Access to Divorce for Same-Sex Couples, 2010
Hickman, Anna, Born (Not So) Free: Legal U. Ill. L. Rev. 1013. Woods, Jordan Blair, Gay-Straight Alliances
Limits on the Practice of Unassisted Childbirth and Sanctioning Pretextual Discrimination
or Freebirthing in the United States, 94 Minn. L. Recent Proposed Legislation, Employment Under the Equal Access Act, 34 N.Y.U. Rev. L. &
Rev. 1651 (May 2010). Discrimination — Congress Considers Bill to Soc. Change 373 (2010).
Prohibit Employment Discrimination on the
Kaplan, Roberta, The Court of Appeals’s De- Basis of Sexual Orientation and Gender Iden- Specially Noted:
cision in Godfrey v. Spano: A Troubling Exercise tity. – Employment Nondiscrimination Act of
of Indecision, 73 Albany L. Rev. 701 (2010). 2009, H.R. 3017, 111th Cong. (2009), 123 Law Notes contributing writer Daniel Redman
Harv. L. Rev. 1803 (May 2010). published an article on the website of The Na-
Kim, Suzanne A., Marital Naming/Naming tion about the problems faced by incarcerated
Marriage: Language and Status in Family Law, Richards, Robert D., Gay Labeling and LGBT youth. See Redman, Daniel, ‘I was
85 Indiana L.J. 893 (Summer 2010). Defamation Law: Have Attitudes Toward Ho- scared to sleep’: LGBT Youth Face Violence Be-
mosexuality Changed Enough to Modify Repu- hind Bars, at http://www.thenation.com/arti-
Layser, Michelle D., Tax Justice and Same- tational Torts?, 18 CommLaw Conspectus 349 cle/36488/i-was-scared-sleep-lgbt-youth-
Sex Domestic Partner Health Benefits: An (2010) (Author’s answer: No!) face-violence-behind-bars
Analysis of the Tax Equity for Health Plan Bene-
ficiaries Act, 32 U. Haw. L. Rev. 73 (2009). Robb, Katherine, What We Don’t Know AIDS & RELATED LEGAL ISSUES:
Might Hurt Us: Subjective Knowledge and the
Lfgren, Ingrid M., The Role of Courts vis-a-vis Eighth Amendment’s Deliberate Indifference Anderson, Cheryl L., Ideological Dissonance,
Legislatures in the Same-Sex Marriage Context: Standard for Sexual Abuse in Prisons, 65 N.Y.U. Disability Backlash, and the ADA Amendments
Sexual Orientation as a Suspect Classification, Ann. Survey Am. L. 705 (2010). Act, 55 Wayne L. Rev. 1267 (Fall 2009).
9 U. Md. L.J. Race, Religion, Gender & Class
213 (Spring 2009). Salsburg, Jacob, The Constitutionality of Burke, Debra D., and Malcolm Abel, Restor-
Iowa’s Sex Offender Residency Restriction, 64 U. ing Congressional Intent and Protecting Dis-
Lipari, Joseph, and Debra Silverman Her- Miami L. Rev. 1091 (April 2010). abled Workers: The Americans With Disabilities
man, Married, Filing Jointly? Same-Sex Mar- Act Amendments of 2008, 15 J. Legal Studies in
riages and New York Taxes, NYLJ, June 18, Schubert, Daniel J., Challenging Ohio’s Business 16 (2009).
2010, p. 3. Adam Walsh Act: Senate Bill 10 Blurs the Line
Between Punishment and Remedial Treatment
Lucarello, James F., The Praise of Silly: Criti- of Sex Offenders 35 Univ. Dayton L. Rev. 277
cal Legal Studies and the Roberts Court, 26 (Winter 2010) (Precisely. And the Ohio Su-
Touro L. Rev. 619 (2010) (includes discussion

Lesbian/Gay Law Notes Summer 2010 125

Hasken, Timothy J., A Duty to Kiss and Tell? Tafzil, Ruly, HIV-Based Claims for Protection 2010). The issue includes articles on a wide
Examining the Uncomfortable Relationships in the U.S. and the U.K., 33 Hastings Int’l & range of HIV & human rights subjects by Juli
Between Negligence and the Transmission of Comp. L. Rev. 501 (Summer 2010). Montaner & Brigitte Schmied, Evelyn P.
HPV, 95 Iowa L. Rev. 985 (March 2010). Tomaszewski, Shelley D. Hayes & Bambi W.
Taylor, John E., Family Values, Courts, and Gaddist & Andre W. Rawls, Amanda Kloer,
Hryniewicz, Malvina J., The Definition of Culture War: The Case of Abstinence-Only Sex Richard A. Wilson, David P. Pusateri, Natasha
“Major Life Activity” Under Adams v. Rice Is Education, 18 Wm. & Mary Bill of Rights J. H. Williams, Andre W. Rawls & Shelley D.
Not “Substantially Limiting”, 20 Geo. Mason 1053 (May 2010). Hayes, Marsha A. Martin, Denise McWilliams,
U. Civ. Rts. L.J. 417 (Summer 2010)(consider- and Damon A. Powee & VaShone Huff.
ing whether “sexual relations” are a “major life Tramont, Edmund C., and Shant S. Boyajian,
activity” under the ADA). Learning From History: What the Public Health EDITOR’S NOTE:
Response to Syphilis Teaches Us About
Nair, Pooja, Litigating Against the Forced HIV/AIDS, 26 J. Contemp. Health L. & Pol’y All points of view expressed in Lesbian/Gay
Sterilization of HIV-Positive Women: Recent De- 253 (Spring 2010). Law Notes are those of identified writers, and
velopments in Chile and Namibia, 23 Harv. are not official positions of the Lesbian & Gay
Hum. Rts. J. 223 (Spring 2010). Specially Noted: Law Association of Greater New York or the Le-
GaL Foundation, Inc. All comments in Publica-
Seelinger, Viviana, Violence Against Women The Spring 2010 issue of Human Rights, a pub- tions Noted are attributable to the Editor. Corre-
and HIV Control in Uganda: A Paradox of Pro- lication of the American Bar Association’s Sec- spondence pertinent to issues covered in
tection?, 33 Hastings Int’l & Comp. L. Rev. 345 tion of Individual Rights and Responsibilities, Lesbian/Gay Law Notes is welcome and will be
(Summer 2010). is entirely devoted to HIV/AIDS, under the is- published subject to editing. Please address
sue title “HIV/AIDS and the Rule of Law: correspondence to the Editor or send via e-
Rights Here, Right Now. (Vol. 37, No. 2, Spring mail.